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INTERNATIONAL ARBITRATION
AMONGST THE GREEKS
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OXFORD UNIVERSITY PRESS
LONDON EDINBURGH GLASGOW NEW YORK
TORONTO MELBOURNE BOMBAY
HUMPHREY MILFORD M.A.
PUBLISHER TO THE UNIVERSITY
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INTERNATIONAL
ARBITRATION
AMONGST THE GREEKS
BY
MARCUS NIEBUHR TOD, M.A.
FBXXOW AND ASSISTANT TUTOR OP ORICL COLLBGX, OXFORD
UNIVERSITT LBCTURER IN GRKXK EPIGRAPHY
CORRX8PONDING MEMBER OF THE IMPERIAL GERMAN ARCHAEOLOGICAL
INSTITUTE
OXFORD
AT THE CLARENDON PRESS
1913
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<(3
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PREFACE
For many years past there has been a pressing
need for a fresh treatment of the subject of inter-
national arbitration among the ancient Greeks.
M. H. E. Meier dealt with it in his essay on DU
PrivatschUdsrichter . . . Athens sawtedie AustrHgal-
gerichte in den griechischen Staaten des A tier turns
(Halle, 1846), and R. Egger has some remarks on
the question in the second edition of his Etudes
historigues sur les traitis publics chez les Grecs et
ckez les Remains (Paris, 1866). A new era was
marked by the full and careful study of E. Sonne
entitled De arbitris externis, guos Graeci adhibue-
runt ad lites et intestinas et peregrinas companendas,
quaestuynes epigraphicae (Gottingen, 1888), which
covers the whole field indicated by the title and is
not confined to the subject of international arbitra-
tion ; but Sonne's task was mainly that of collecting,
discussing, and classifying the relevant inscriptions
and passages from ancient authors, and he has
devoted only twelve pages to the discussion of our
subject in general. Six years later V. B^rard's
monograph De ^arbitrio inter liber as Graecorum
civitates (Paris, 1894) appeared, a work which,
though it gives a somewhat fuller account of the
procedure and the history of arbitration among the
274984
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VI
PREFACE
Greek states, is in many respects unworthy of the
eminent French scholar and writer whose name
it bears.
These two dissertations were still regarded as the
standard authorities when I wrote the essay which
follows, and no fresh treatise upon the subject had
appeared, so far as I am aware, within the past
eighteen years, in spite of the remarkable interest
recently aroused in the - question of arbitration.
A popular but stimulating account of the Greek
employment of this means of avoiding an appeal
to arms was contributed in 1904 by J. Gennadios
to the pages of a journal entitled Broad Views,
and an interesting article dealing with the same
subject appeared six years ago in the Classical
yaurnal from the pen of W. L. Westermann, while
C Phillipson has devoted a chapter to it in his
recent work on The International Law and Custom
of Ancient Greece and Rome (London, 191 1), which,
characterized though it is by great industry and
legal knowledge, has failed to utilize the new
evidence upon international arbitration which has
accumulated since B6rard s work was written.
My manuscript was already in the hands of the
Delegates of the University Press when A. Raeder s
treatise L Arbitrage international chez les Hellenes
(Christiania, 191 2) appeared under the auspices of
the Norwegian Nobel Institute, giving what is by
far the fullest and best account extant of the employ-
ment of arbitration in ancient Greece. My first
thought was to withdraw my own essay, but the
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PREFACE vii
Delegates determined to proceed with its publica-
tion and I deferred to their decision. I have not
attempted to treat all the questions involved with
the minuteness which marks Raeder's work. He
has discussed with great care and in considerable
detail the circumstances of every known example of
arbitration between state and state, and has traced
the historical process which I have merely summed
up in a brief sketch (Chap. VI), Yet I am not
without hope that my essay may succeed in
meeting a real need. To some the greater fami-
liarity of its language, to others its brevity, may
be a recommendation, while others again may see
its justification in the number of inscriptions used as
the basis of my study which previous writers have
left unnoticed. In any case, since this essay repre-
sents an inquiry conducted quite independently of
Raeder's work, it may at least serve the useful
purpose of confirming his results where we agree
and of calling attention to the problems where we
arrive at different conclusions. Raeder has not
furnished me with any new evidence, and if I have
omitted some of the inscriptions which he cites, it is
because I had previously come to the conclusion
that they were not really relevant.
My aim is to give as accurate and complete a view
as I can of the evidence, especially that which comes
from inscriptions, relating to the occasions and
methods of arbitration among the Greek states.
Although I have consulted the modern works
already mentioned and owe to them no inconsider-
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viii PREFACE
able debt, my object throughout has been to divest
myself as far as possible of all preconceptions and
bias, and to go directly to the ancient authorities for
my material.
I have retained the term 'international' in con-
nexion with arbitration in Greece as being more
familiar than ' interstatar, and as unlikely to give
a false impression ; for in using the word we in-
stinctively think of it as referring to a nation in its
political rather than in its ethnological sense, as
denoting a state rather than a race.
I have not thought it needful to reproduce in
full, as B6rardv does, the inscriptions which form
a large proportion of the evidence at our disposal
in dealing with this subject. On the other hand, an
enumeration of the texts in question has seemed to
me to be essential if the foot-notes are to be kept
within a moderate compass.
This essay was awarded the Conington prize in
191 2 ; my sincere thanks are due to the Delegates
of the University Press for undertaking the burden
of its publication.
M. N. T.
Oxford,
February 7, 19 13.
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CONTENTS
PAGE
Preface v
List of Abbreviations xi
Chap.
I. The Sources i
II. Disputes submitted to Arbitration . 53
III. The Appointment of the Tribunal . 70
IV. The Procedure of the Tribunal .107
V. The Evidence adduced in Arbitral
Trials 13a
VI. The Award 15a
VII, The Development and Influence of
Arbitration in the Greek World . 169
Table OF Concordance 191
Index 195
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LIST OF ABBREVIATIONS
A.E.M.
A,/. Arch,
Ath. Mitt.
B.C.H.
B^rard, Arb.
Berl Phil. Woch.
B.S.A.
Archdologisch-epigraphische Mitteilungen aus
Oesterreich- Ungam.
American Journal of Archaeology.
*ApxaM>XoyiKrf *Eif>rffju€pU.
Athenische Mitteilungen.
Bulletin de Correspondance HelUmque.
V. B^rard, De arHtrio inter liberas Graecorum
civitates, Paris, 1894.
Berliner Philologische Wochenschrift.
Annual of the British School at Athens.
C. /. G. Corpus Inscriptionum Grcucarum.
C. /. L. Corpus Inscriptionum Latinarum,
Delphes Fouilles de Delphes. Tome iii, jkpigraphie,
Ditt. O. G, L G. Dittenberger, Orientis Graeci Inscriptiones
Seledaey Leipzig, 1903-5.
Ditt Syll.^ G. Dittenberger, Sylloge Inscriptionum Grae-
carum (2nd ed.), Leipzig, 1 898-1901.
H. H. E. L. Hicks and G. F. Hill, Manual of Greeh
Hist. Inscriptions, Oxford, 1901.
Hicks £.L. Hicks, Manual of Greeh Historical
Inscriptions, Oxford, 1882.
Hitzig, Staatsvertrdge H. F. Hitzig, Altgriechische Staaisvertrdge
fiber Rechtshilfe, Ziirich, 1907.
/. G. Inscriptiones Graecae.
I G. Brit. Mus. Ancient Greeh Inscriptions in the British
Museum.
I. G. Bom. Inscriptiones Graecae ad res Romanas perti-
nentes.
Inscr.Jur. Recueil des Inscriptions Juridiques Grecques
Paris, 1891-1904.
/. V. Magnesia Die Inschriften von Magnesia am Maeander.
O. Kern. Berlin, 1900.
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Xll
LIST OF ABBREVIATIONS
/. V, Pergatnon Inschriften von Pergamon. M. Frankel.
Berlin, 1895.
/. V. Priene Inschriften von Priene, F. Hiller von Gaer-
tringen. Berlin, 1906.
Jakreshefte Jahreshefte des osterreickischen archdologischen
Institutes,
J. H. S. Journal of Hellenic Studies.
Le Bas-Foucart Ph. Le Bas, Voyage Arch/ologique : Inscrip-
tions /, //, expliccUion par P. Foucart.
Le Bas-Waddington Ph. Le Bas et W. H. Waddington, Voyage
Arch/ologique : Inscriptions III
Michel C. Michel, Recueil d* Inscriptions Grecques^
Paris, 1900 ff.
Man. Ant. Monumenti Antichi,
Mus. Ital. Museo Italiano.
Neuejahrb.
Fleckeisen's Jahrbikher fiir classische Philo-
•
iogie.
Olympia
Olympia. V. Die Inschriften. W. Dittenberger
und K. Purgold. Berlin, 1896.
Pauly-Wissowa
Pauly-Wissowa, Real-Encyclopadie der classi-
schen Altertumswissenschaft.
Raeder, Arb.
A. Raeder, L* Arbitrage tntemattonal chez les
Z^/ft«^j, Christiania, 191 2.
R.E.G.
Revue des Jttudes Grecques.
Rev. Et. Anc.
Revue des itudes Anciennes.
Rev. Philol.
Revue de Philologie.
Rhein. Mus.
Rheinisches Museum.
SC.
Senatus consultum.
S.G.D.L
Sammlung der griechischen Dialekt-Inschriften.
Sonne, Arb.
E. Sonne, De arbitris extemis . . . quaestiones
epigraphicae^ Gdttingen, 1888.
Stzb. Berl.
Sitzungsberichte der K. preussischen Akademie
der Wissenschaften.
Stzb. men
Sitzungsberichte der Kais. Akademie der Wissen-
schaften in Wien. Philosophisch-Historische
Klasse.
Ztschr.f. Num.
ZeitschriftfUr Numismatik.
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THE SOURCES
OuH knowledge of the life and thought of the
ancient Greeks is derived from many different
sources, Amongst these the first and most impor-
tant, that to which attention has been chiefly directed
throughout all the centuries during which Greek
history has been studied at all, is the ancient litera-
ture, primarily that of the Greeks themselves but
also, though to a much smaller extent, that of the
Romans. It is only within comparatively recent
times that scholars have learned that this, though
the main, is not the sole avenue of approach to an
adequate conception of Greek history, and that
though the literary evidence is not, and never can
be, relegated to a secondary position, yet our know-
ledge, if it is to be both full and clear, must be
supplemented from other quarters. Greography and
geology, philology and anthropology, numismatics,
epigraphy and archaeology — each of these sciences
has its distinctive contribution to make to the sum-
total of that knowledge, and the last quarter of
a century has witnessed the emergence of a new class
of evidence in the papyri.
But although the conception of ancient Greece
which we form to-day is thus derived from various
sources, the relative value of these differs widely
according to the particular aspect of Greek activity
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j.^-'.jcIJ^P'IffiR^^ ARBITRATION
which we select for study. An examination of
Greek art and architecture, for example, must be
based primarily upon the evidence of the ancient
works in stone, metal, clay, or other material which
have survived the ravages of time and man. On
the other hand, our knowledge of the remarkably
vigorous and diversified life of the gilds and societies
which flourished throughout the Greek world from
the end of the fourth or the beginning of the third
century B.C. and onwards depends entirely upon the
data afforded by inscriptions, supplemented, in the
case of Egypt, by those of the papyri. It is in vain
that we turn either to the pages of literature or to
the records of archaeology ; both alike have practi-
cally nothing to tell us.^
If now we examine the ancient-£xidence for the
practice of international arbitration, we shall find
that it comes from two sources only, l iterature an d
insc riptions . The papyri give us no assistance in
this study, for, apart from those which are literary in
character, they ordinarily refer to private interests or
to the internal administration of Ptolemaic or Roman
Egypt and do not deal with questions of foreign
policy and international relations. Again, though
archaeology and numismatics have thrown much
valuable light upon questions of national affinities, of
commerce and intercommunication and even, in some
instances, of friendships and alliances between state
and state, yet they cannot distinguish those cases in
which the rapprochement is the outcome of an
arbitral settlement of previous differences, still less
* See the Index of sources in F. Poland, Geschichte des griech,
Fereinstvesens, pp. 548 ff.
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THE SOURCES 3
can they determine the process by which such settle-
ment was brought about
It would be a difficult task, and fortunately it is
not necessary, to decide whether in our present study
the literary or the epigraphical evidence is the more
valuable. Each supplements the other and each has
its own characteristics. Were it not for the literary
sources, our evidence would be restricted to the
fourth and following centuries, for the earliest inscrip-
tion to which we can appeal belongs to about
390 B.C.* Further, the examples of arbitral judge-
ments recorded in the extant works of the Greek and
Roman historians are, as a rule, placed in their true
historical setting and are, moreover, selected because
of their intrinsic importance. In both these respects
the epigraphical evidence contrasts in a marked way
with that afforded by the historians. The former
gives us, for the most part, individual passages, as it
were, of Greek history, torn from their context and
impossible fully to understand because isolated from
that setting which alone renders the incidents of
history really intelligible. Nor has their survival
been determined by the inherent importance of the
events which they relate but by a number of factors
wholly irrelevant to their historical content. Indeed,
many of the arbitral decisions so recorded must have
been of infinitesimal importance when regarded from
the standpoint of Greek history as a whole, and
a number of them can be only approximately dated
by the character of the letters in which they are
engraved. In others, again, the mutilated condition
of the stones makes it impossible to determine points
* No. Lxx. See p. 47.
B 2
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4 INTERNATIONAL ARBITRATION
which are of paramount importance historically, such
as the name of one, or even of both, of the states
involved in the dispute.
So far, the advantage would seem to be all on the
side of the literary records. Yet the epigraphical
evidence has certain compensating points of supe-
riority. It is precise and detailed to an extent rarely,
if ever, equalled by literary histories, and it furnishes
information not only regarding the cause, the fact
and the result of arbitration, but also regarding
its process and methods, about which the historians
are almost entirely silent. A comparison, however
cursory, of the two classes of sources will afford
abundant confirmation of this statement, but perhaps
it may best be illustrated by comparing the records
of literary history and of epigraphy in the single case
in which we possess evidence of both kinds relating
to the same arbitration. Tacitus tells how Lacedae-
monian and Messenian envoys came to Rome in
A.D. 25 to urge before the Senate the claims of their
respective states to the ager Dentheliates and the
temple of Artemis Limnatis which lay within it.^
The Messenians asserted that awards in their favour
had been pronounced by Philip of Macedon, Antigonus
and Mummius, and then added
sic Milesios permisso publice arbitrio . . . clecrevzsse.
Such is Tacitus' account, and from it we may turn
to that of the Milesians themselves as engraved at
Olympia by the triumphant Messenians.* From it
we learn how the decision was referred to Miletus,
what was the precise question which the court was
* Ann. iv. 43. ^ No. i. See p. 7.
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THE SOURCES 5
empowered to settle, the size of the tribunal and the
method of its appointment, the time-limit set to the
advocates' speeches, the names of the speakers, the
award, and even the exact number of votes given on
either side. This is not an extreme case, but would
probably be found to be typical if we possessed
parallel accounts, literary and epigraphical, of other
cases referred to arbitration.
Thus we are almost wholly dependent upon
inscriptions for the details, above all for the details
relative to the procedure, of arbitral trials. Yet it
must not be thought that this statement implies any
censure of the literary historians. In the instance
just cited, Tacitus has placed on record those facts
which, for the historian, are of paramount importance
— ^the question in dispute, the state to which it was
referred for decision, and the nature of its award.
Had he inserted in his narrative a translation of the
inscription engraved at Olympia, it would have been
deservedly criticized as an unnecessary insertion,
destroying the balance and proportion of his
historical record. As well might we blame a
historian of the seventeenth century for failing to
quote in full all the texts contained in Gardiner's
Constitutional Documents of the Puritan Revolution
as demand from an ancient historian an account of
the methods of arbitral procedure and the formulae
of arbitral awards. The historian's task is to
summarize, to extract the essential facts of impor-
tance from a mass of details, to set events in a true
historical perspective ; yet, just as a detailed know-
ledge of a period is impossible without the study of
the contemporary documents, so any inquiry into the
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6 INTERNATIONAL ARBITRATION
processes of arbitration in the Greek world must go
behind the summaries of Thucydides or Polybius,
Tacitus or Plutarch, to the full and precise data of
the inscriptions.
So far as the literary evidence is concerned, we
are not much in advance of scholars of a century ago*
Recently discovered works of ancient authors have
not enlarged it, nor has textual criticism brought
about any serious modification in it. The value of
the epigraphical evidence, on the other hand, has
increased strikingly within the last quarter of a
century and even within the past few years. Not
only have fresh inscriptions been unearthed, some
of them of the greatest value, but the labours of
Dittenberger, Foucart, Wilhelm, and others have
resulted in the restoration of many passages which
have survived only in a mutilated condition, and in
the better understanding of the events and processes
referred to in the texts. It is therefore of the
greatest importance that our study of this part of
the evidence should be directed to the most recent
and best texts of the documents in question. The
following list contains a brief account of the inscrip-
tions which, together with a number of passages in
Greek and Roman authors, form the basis of the
present essay ; they follow roughly a geographical
order, since a chronological arrangement often results
in the separation of the different episodes in a single,
long-continued dispute, and in any case numerous
texts can only be approximately dated.^
* I have made no attempt to supply a complete bibliography
of the inscriptions contained in this list References are given
to /. G., Ditt. Sy//.\ Ditt. O. G. L, S. G. B. /., and Michel in
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THE SOURCES 7
THE PELOPONNESE
I
Sparta and Messenia
Ditt Syll} 314 ; Michel 31. [Olympia v. 52; Hicks aoo.]
Inscribed on the base of the Nike of Paeonius dedicated at
Olympia by the Messenians, probably about 423 B.C.
Date : between 146 and 137 b.c.
The heading runs : Kpia-is irepl x^P^'^ \ Mco-o-awot^
/cat Aaic€Sai/ioyu>[i9]» and is followed by :
1. An Elean decree permitting the Messenians
to inscribe the award at Olympia (IL 3-28) ;
2. A letter from the Milesian magistrates to those
of Elis accompanying the copy of the award
(11. 29-40) ;
3. The Milesian official account of the date, cir-
cumstances, conduct and result of the trial
(U. 41-70).
II
Sparta and Megalopolis
Ditt Syll} 304. ^Olympia v. 47.]
Ten fragments of a marble slab excavated at Olympia.
Date : soon after 164 B.C.
A long, but unfortunately much mutilated, record
of an arbitral decision between the Spartans and the
Achaeans, involving the question of a disputed
frontier between Sparta and Megalopolis and of the
every case where a text appears in any or all of these collections,
and to them the reader is referred for a fuller bibliography.
I have, as a rule, added references onfy to discussions of the texts
which have appeared since the publication of these works, though
occasionally I have indicated, in square brackets, the book or
article in which the best and fuiltst commentary on the inscrip-
tion is to be found, or that which may be most accessible to
English readers.
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8 INTERNATIONAL ARBITRATION
possession of the Sciritis and Aegytis. It contains
the record of a previous award (11. 30-38), which is
confirmed by the present tribunal after a vain
attempt to settle the matter by agreement.
Ill
Zarax and a neighbour-State
S. G.D.I. 4547,4546.*
Two fragmentary slabs of red Laconian marble, foimd at the
village of ^oivuoy west of Epidaurus Limera.
Date: 195-146 b.c.
Decree of a Laconian city, perhaps Cotyrta,^ in
honour of two citizens, who, in an important arbitra-
tion before Tenian BiKaarai, secured a verdict
favourable to their state and adverse to ZBra,x.
IV
Geronthrae and another State
S. G. JD. /. 4530-
On front and back of a stone slab, found at Geronthrae; of
the inscription on the front of the stone but little is legible.
Date : 195-146 b. c'
Decree of Geronthrae granting the honours and
privileges of npo^evoi koI cvc/ayerat ra? ^0X109 to
Euboean judges, who, having been sent to Geron-
thrae to settle internal disputes, acquitted them-
selves to the general satisfaction and were asked to
represent the state before the koivov t&v AaiceSat-
[wvimv in an arbitration case. Such is B^rard's*
^ Professor Wilhelm has pointed out to me that these two in-
scriptions probably form parts of one and the same decree.
' Sonne, Ar^. xxxiii ; Raeder, Ard. p. 105, suggests that it was
Asopus.
' So Sonne and B^rard : Raeder, Ard. 139, advocates a date
early in the first century b. c.
* B^rard, Ard. iv. p. 11 f. j cf. Raeder, Ard. 138 f.
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THE SOURCES 9
explanation, but the text, especially on the front of
the stone, is so mutilated that the results are
uncertain.
Messenia and Phigalia
Ditt.Sy//.* 234; S. G. £>. Z 464s ; Michel 187; Hitzig, Siaafs-
vertriige^ No. 18, p. 15.
On a limestone slab, broken on the left and below, found at
Phigalia.
Date: 250-222 b.c.
A copy, inscribed at Phigalia, of a decree of the
Messenians embodying an agreement (6/AoXoyux)made
with the Phigalians on the request of envoys of the
Aetolian League (to which Phigalia at this time
belonged) and of the Phigalians themselves, who
ratified the compact (11. 21, 22). Each state granted
to the other WonokiT^ia and eTriya/Aia, and it was
agreed that the disputed territory should be cultivated
by citizens of both in common, as heretofore.
Strictly speaking, we have here an example of
mediation rather than of arbitration, for the Aetolian
envoys and mediators {npea-fiexrral koI SiaXvrai) do
not seem to have acted as an arbitral court.
VI
Messenia and Phigalia
5. a Z>, 7.4647.
Two adjoining fragments of a stele, found at Messene, south-west
of the Theatre.
Date : third century b. c.
Fragment of a boundary delimitation between
Messenia and Phigalia, apparently belonging to the
same period and circumstances as the foregoing.
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lo INTERNATIONAL ARBITRATION
VII
Messenia and PhigalIa
5. G.Z>. 7.4646.
A marble fragment, found near the Stadium at Messene.
Date : third century b. c.
A fragment apparendy containing portions of three
paragraphs of a boundary delimitation ; it refers to
Messenians and Phigalians, and may relate to the
same arbitration as Nos. V and VI,
VIII
Megalopolis and Thuria: Megalopolis
AND Messene
Oiympia v. 46.
Six fragments of a large slab of grey Peloponnesian marble,
inscribed on front and back; found at Oiympia, 1878-1881.
Date : soon after 182 b. c.
Record of a boundary delimitation between
Megalopolis and
1. Thuria (11. 1-40),
2. Messene (11. 41-82),
carried out shortly after the readmission of the
Messenians into the Achaean League, which followed
Philopoemen's death and the victory of Lycortas in
182 B.C., and the separation of Thuria from Messene,
which took place at the same time.^ It is uncertain
whether the boundaries were settled by arbitration
in the strict sense of the word.^ Amongst the
representatives appointed by Megalopolis to watch
the commission in the interests of their state are
* Polyb. xxiii. 17. 2.
' ' Bei dem damaligen Verhaltnis zwischen Messene und dem
achaischen Bunde ist an ein Schiedsgericht schwerlich zu denken '
(Dittenberger in Oiympia v. p. 90). But this objection is not
conclusive.
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THE SOURCES ii
Diophanes son of Diaeus, the opponent of Philopoe-
men and Lycortas, Thearidas and the historian
Polybius.
According to Boeckh, C.I.G. 1534, found at
Karytena, contains an arbitral award. * Videtur hoc
titulo decretum arbitrorum contineri, in quos com-
promiserant litigantes.' With a boundary delimita-
tion it certainly deals, but there is no conclusive
evidence that the settlement was the outcome of an
arbitration ; Wilamowitz thought that the frontiers in
question were those between publicand private lands.^
IX
Tegea and Caphyae
Ofympia V. 50.
Two fragments of a limestone slab inscribed on both sides;
found at Olympia.
Date : second century b. c.
The record, which is very fragmentary, seems to
refer to a tov hiKauarrriptov KpCai^ : there is nothing,
however, to indicate the state which appointed the
tribunal. As Dittenberger points out {Olympia, loc.
cit.), the dispute cannot have related to a contested
frontier, since the territories of the two states are
nowhere contiguous.
X
Heraea and Aliphera
Ofympia V. 48.
Fragment of a slab of greyish limestone, found at Olympia in 1884.
Date : second century b. c.
The document is too mutilated to admit of restora-
tion, but a reference to Sticcurrai makes it probable
^ Sonne, Arb, p. 24; Raeder, Arb. 141 f.
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12 INTERNATIONAL ARBITRATION
that it relates to an arbitration between the two
contiguous Arcadian states mentioned in it.
XI
Arcadia and Olympia
/. G, iv. 6i6. [M. Frankel, Stzb. BerL, 1898, 635 ff.]
A limestone slab, now in the Museum at Argos,
Date : 362 b. c. or shortly afterwards.
If we accept Frankel's interpretation of the
inscription, we have here a list of KaroSiicat ica[t
6/ioXoyiat], assessments made by the arbitral court
representing Cleonae, or by mutual agreement
between the Olympians on the one hand and the
Arcadians and Stymphalians on the other, of repara-
tion due for damage done at Olympia while in the
hands of the Arcadians (365-363 b.c.).
XII
Hermione and Epidaurus
/. G. iv. 927 ; cf. A. Wilhelm, Neue Beiirdge zur griech. In-
schriftenkunde I i^Stzb. Wien^ clxvi. i), pp. 26 ff.
Four fragments of a limestone slab, found at the Epidaurian
Asclepieum.
Date : second c€fntury b. c.
The record is seriously mutilated, but apparently
contained the names of the representatives of the
contending states and the award of the arbitral court.
Frankel (/. G., loc. cit.) thought that the rival of
Hermione was Cleonae, and that the koivt^ in which
the verdict is expressed pointed to the Athenians as
iarbitrators. Wilhelm, however, has acutely shown
that the disputants must be Hermione and Epidaurus,
and that the arbitral court may well have been sum-
moned from Cleonae (A 1. 5).
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THE SOURCES 13
XIII
Troezen and Hermione
1, G. iv. 752 (see addenda^ p. 381). To the articles there cited
must be added the following : P. Legrand, Rev, PhiloL xxvi.
99 ff.; B. Keil, Anonymus Argentinensis, 277; A. Nikitsky,
Journal des Ministeriums der Volksaufkldrung (in Russian),
1902, pp. 445 ff. ; A. Nikitsky, Hermes^ xxxviii. 406 ff. ; A. Wil-
helm, Neue Beiirdge zur griech. Insckriftenkunde I {Sizb,
Wien^ clxvi. i), p, 28 f. ; Hitzig, Staaisverirdge, p. 38 note 2.
A stele, broken at the top, found at Troezen in 1896.
Date : about the beginning of the second century b. c.
Part of an agreement concluded between Troezen
and a neighbour-state, in all probability Hermione,^
settling disputes relating to territory and fishing
rights, adjusting claims made for compensation, and
granting to citizens of either state the rights of
marriage and of possessing real property in the
other in perpetuity. The Athenians are asked to
appoint three men to give to this agreement the
validity of an arbitral award and to publish it at
Calaurea, at the Asclepieum of Epidaurus and on the
Athenian Acropolis; Part of the Epidaurian copy
has survived (see No. XIV).
XIV
Troezen and Hermione
/. G. iv. 941 (see p. 384). Add the articles by Nikitsky and
Wilhelm cited under No. xiii.
Two fragments of a marble slab found at the Asclepieum of
Epidaurus.
Date : about the beginning of the second century b. c.
* See A. Wilhelm, loc. cit. HaussouUier thought of Epidaurus
{Rev, PhiloL xxv. 336 if.), P. E. Legrand of Megara {B. C,H.
xxiv. 199).
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14 INTERNATIONAL ARBITRATION
The remarkable recurrence in this text of words
and phrases used in No. XIII suggested that this
was a fragment of the copy of that inscription which
was erected at the Asclepieum (IL i8, 19). Frankel
(/. C, loc. cit.) objected that the Athenians could not
conceivably have used the Doric dialect even in an
award given to Peloponnesian states. But it must
be noted that the Athenians are called in only to
sanction and publish an agreement already formulated
and concluded (ra yeyovora aurois ofjuokoya) by two
Dorian states : it was not to be expected that they
should turn it into the Koivq. After Nikitskys
discussion of the fragment there can be no further
doubt that it represents the same text as No. XIII.
XV
Epidaurus and Corinth
Ditt. Syll? 452; LG, iv. 926; S.G.D.I. 3025; Michel 20.
[Inscr, fur, i. pp. 342 ff.]
On a limestone stele found at the Epidaurian Asclepieum.
Date : 242-235 b. c*
A long and well-preserved record of an arbitration
award pronounced at the request of the Achaean
League by a court of 151 Megarian hiKoarai, and of
the frontier delimitation carried out by a commission
composed of thirty-one members of the court : the
names of the arbitrators and of the commissioners
are appended, arranged under their several tribes —
Hylleis, Pamphyli and Dymanes.
* Raeder, Arb, p. 95, argues that the inscription may belong to
the early part of the second century B.C., but the stoichedon writing
points to the earlier date.
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THE SOURCES 15
MAINLAND HELLAS NORTH OF THE ISTHMUS
XVI
Pagae AND A neighbour-State
7. G. vii. 189.
Found at Pagae, now lost.
Date : third century b, c.
Decree of Pagae in honour of the Achaeans and
Sicyonians in general, and in especial of the judges
sent by them to arbitrate in a dispute between Pagae
and a neighbouring state, perhaps Megara or Aego-
sthena.
The record is seriously damaged, but this is the
explanation of it adopted by Dittenberger (/. G.^ loc.
cit) and B^rard {Arb. xiv. p. 21).
XVII
ACRAEPHIA AND CoPAE
Ditt. SylL^ 454 ; 7. G. vii. 2792. [P. Jamot, B, C. H. xiii. 407 f.]
On an immense cube of stone, near the road from Karditza to
Topolia.
Date ; third century b. c.
Boundary between the territory of Copae and that
of Acraephia, as determined by the Boeotian League
(o/)tTT[a]i^a)v Botctf[Taiv]). Cf. No. XXI.
XVIII
Acraephia and neighbours
7. G. vii. 4130.
Found in 1885 near the Ptoum (Perdikavryst).
Date : about 150 b. c.
A decree (11. 1-61) passed by the (rivehpoi and
S^fios of Acraephia in honour of the Larisaeans, of
the three judges who, as their representatives, had
tried the numerous cases (81/cat) between Acraephia
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i6 INTERNATIONAL ARBITRATION
and its neighbour-states in Boeotia, or had brought
about an agreement between the contending parties,
and of the secretary who had accompanied them.
The 8t/cat in question seem to include cases
between state and state as well as those between
individual citizens of different states.
XIX
ACRAEPHIA AND AN UNKNOWN StATE
/. G. vii. 4130, 11. 62-75 ^"^^ ^' ^* ^i* 4^3^'
A half-cylinder of bluish marble, found in 1885 at the Ptoum.
Date : about 150 b. c.
Decree of the arvvehpoi and S^/xo9 of Acraephia,
passed in honour of the Larisaeans and of three
judges and their secretary sent by them.
It is uncertain whether the cases tried were those
between citizens of Acraephia or between the state
and one of its neighbours.
XX
Acraephia and an unknown State
P. Perdrizet, B. C. If. xxiv. 74 ff.
A limestone slab, discovered at Acraephia.
Date: about 150 b.c.
Fragment of a decree of Acraephia in honour of
Megara and of three Megarian St/caorac and their
secretary. Possibly this decree also refers to a tri-
bunal for the settlement of internal and not of inter-
national disputes.
XXI
Lebadea and Coronea
W. VollgrafF, B.C.If. xxvi. 570, restored and interpreted by
A. Wilhelm, JVeue Beitrdge zurgriech, Inschriftenkunde I (JSizb.
Wien^ clxvi. i), i3fF.
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THE SOURCES 17
A limestone pillar found at Grant'fsa; now in the Museum at
Lebadea.
Date : third century b.c.
Boundary between the 'EXcicaivtas ya of Lebadea
and the territory of Coronea, defined by the Boeotian
League. Cf. No. XVIL
XXII
Delphi and Amphissa
E. Bourguet, B. C. If. xxxv. 460 ff. Cf. H. Pomtow, Ber/. Phil.
Wbch. xxxii. 188 f.
On a block of grey limestone from the base which supported the
golden chariot dedicated to Apollo by the Rhodians ; found
in May 1895, inside the eastern wall of the sacred precinct at
Delphi.
Date: July-December 180 b.c.
Decree of the Delphians in honour of the Rho-
dian Safio9 and of the nine Rhodian judges sent to
arbitrate between Delphi and Amphissa in a dispute
regarding the possession of certain tc/xcVij and the
frontier between the two states.
The names of these nine Rhodian arbitrators are
found on the official list of Delphian irpo^euoi (Ditt.
Syll? 268, 11. 212-21 ; S. G.D.I. 2581, 11. 216-25).
XXIII
Delphi and its Neighbours
DelpheSi fasc. 2, No. 89.
Inscribed on the wall of the Athenian Treasury at Delphi
Date : early second century b.c. (perhaps 195 ac).
Delphian decree passed in honour of ApoUodorus
of Athens for services rendered to Delphi in a trial
involving sacred lands and debated territory (a Kpiai^
a TTcpl r!av 7€ii€i/€<ov Kal ras dfw^iXXoyov yj&pai). The
149S c
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i8 INTERNATIONAL ARBITRATION
trial here referred to may be that of 195 B.C. men-
tioned in No. XXVI.
XXIV
Delphi and an unknown State
Delphes^ fasc. i, No. 260.
Found in 1894 at the north-west comer of the terrace of the
Siphnian Treasury.
Date : ca, 146 b.c.
A Delphian decree in honour of three judges sent
from Hypata, praising them, inter alia^ cirl T[ai Kp]icr€i,
ac werroLrjvrax tS)[v] S[cic]a>i'. What these Scicat were
is uncertain. E. Bourguet (loc. cit.) conjectures, on
the ground of Delpkes, fasc. i, No. 261, that they may
have related to the sanctuary of Thermopylae, but
thinks that the text may refer to a dispute between
Carystus,Eretria and Chalcis, of which three Delphian
fragments, unpublished as yet, give us an imperfect
account. It is uncertain, however, whether the Scicat
are * international ' in character at all.
XXV
Delphi and Ambryssus-Phlygonium ^
Delphes, fasc. 2, No. 136.
Inscribed on the Athenian Treasury at Delphi.
Date: ca. 140 b.c.
The text, originally thirty-three lines long, was
arranged in two columns : of these the first has per-
ished except for three insignificant fragments, but
the second is almost entirely preserved and contains
a boundary delimitation between Delphi and two of
its neighbours on the east, settling the questions of
* For the position of these two states see G. Colin's commentary
on this inscription, loc. cit.
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THE SOURCES 19
frontier, water-rights, and Upd. The fact that the
award was inscribed upon the Athenian Treasury
makes it probable that the arbitrators were sum-
moned from Athens.
A fragment {DelpAes, fasc, 2, No. 142), which per-
haps refers to the same occasion, mentions Athens
and Ambryssus and a Roman proconsul,
XXVI
Amphissa and Anticyra-Ambryssus-Delphi
CI.G. 171 1 ; C. Wescher, £iude sur k monument bilingue de
Delphes (Paris, 1868) ; the text revised by J. Schmidt, Hermes^
XV, 27s ff.; C.LL. iii* 567, and Addenda^ p. 987, Suppl. i.
p. 1317, No. 7303 ; the Greek text of the second century B.C.
with corrections and important additions in G. Colin, B. C. H,
xxvii. 104 ff. This last edition is cited throughout this essay.
On a large number of fragments of grey limestone discovered for
the most part on or immediately below the terrace of the
Apollo temple at Delphi. All except, four (Colin, pp. x68 ff.)
can be assigned to their places in three immense blocks which
formed orthostatae in the south wall of the temple.
Date: 117 b.c Below was added a further text, in Latin and
Greek, oF about a.d. 115.
The long inscription of 1 1 7 b. c. comprises a number
of documents, beginning with (i) a letter of a Roman
magistrate to the Amphictiones inviting them, in
accordance with a SC, to decide certain specified
disputes (Col. A, U. i-^o). This is followed by (2)
a list of the Amphictiones, together with the states
they represented (A U. 2Q-33» B 11. i-io), and (3) the
formula of the oath taken by them (B 11 io-ri6),
Of the questions referred to their decision (4) the
first (B 11. 16-28) relates to a deficit in the Treasury,
which is estimated at fifty talents by twenty-two
c 2
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20 INTERNATIONAL ARBITRATION
votes out of twenty-four, (5) the second to the
demarcation of the frontiers of the sacred land of
Apollo (B 11. 28-33, C, D IL 1-6), (6) the third (D
11. 7-20) to a deficit in some fund, (7) the fourth
(D 11. 20-26) to the revenues from temple flocks and
herds, (8) the fifth to fines inflicted upon thirteen
Delphian citizens (D 11. 26-38, E, F).
Of the five decisions only the second comes within
the scope of this inquiry. The Amphissans claimed
the maintenance of the frontier delimitation carried
out, probably about 195 B.C., by Pausanias the
Thessalian and the commission over which he
presided. On the other hand, the envoys of Anti-
cjrra, Ambryssus and Delphi put forward a claim on
behalf of the settlement carried out by the hiero-
mnemones perhaps in 337 b.c., and this was upheld
by all the twenty-four votes of the council (B 32-
C 8). The rest of the document contains a careful
and detailed record of the frontier-demarcation car-
ried out by the hieromnemones or their representa-
tives in the presence of envoys of the states directly
interested, and a list of those private persons who
were occupying sacred lands and were warned that
they must evacuate their holdings and destroy the
buildings they had erected on them (cf. S. G.D.I.
2501,11. 15 ff.).
Below is added in larger letters a rescript of
C. Avidius Nigrinus,^ a legate of Trajan, whose
intervention about a.d. 115 was necessitated by
fresh disputes. He refers to a boundary-delimita-
tion carried out by the hieromnemones about 190 b.c.
on the authorization of the Senate and of M'. Acilius.
* Pauly-Wissowa, ii. 2384.
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THE SOURCES 21
XXVII
Metropolis and Oeniadae
G. Soteriades, "E^. *Apx. 1905, 55 ff. No. 2.
On the reverse side of No. xxviii : found in the temple of Apollo
at Thermum.
Date : soon after 240 ac
This short but perfectly preserved record, dated
by the name of the Aetolian a'TparrfY6s, bears the
tide Kpifia yaiKov ^rpariKov riKeo^ and contains the
award of a boundary commission of Thyrrhean * land-
judges ' (yooScicat).
XXVIII
Stratus and Agra
G. Soteriades, '£<^. 'Apx* 1905, 55 ff. No. i.
On a hollow stele of bronze, found in the temple of Apollo at
ThermimL
Date: 280-272 b.c.
A treaty and alliance between the Aetolians and
the Acarnanians ; one of its clauses provides for the
delimitation of Pras, if possible by agreement
between Stratus and Agra, otherwise by a commis-
sion of ten Aetolians and ten Acarnanians, excluding
the citizens of the two cities immediately concerned
(11. 6-9).
XXIX
Aetolia and Thyrrheum-Cassopa
/. C vii. 1 88. [Le Bas-Foucart 1 7.]
Found at Pagae, but now lost.
Date: 242-223 b.c.
A decree of Pagae relating to a dispute between
the Aetolians on the one hand and on the other the
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22 INTERNATIONAL ARBITRATION
citizens of Thyrrheum (Acamania) and Cassopa
(Epirus), settled by a board of Achaean arbitrators.
The trial appears to have taken place at Pagae.
This is Dittenberger s explanation of the document
(/. G.^ loc. cit). According to him the Aetolians
were aided by the Boeotians, the Thyrrheans and
Cassopaeans by the Achaeans, but it is hard to believe
that these last play simultaneously the rdles of arbi-
trators and of supporters. In the mutilated condition
of the text, however, no certain conclusion is possible.
XXX
Hypata and Erythrae
/. G. ix. 2. 7, and Addenda ultima^ p. viii j S. G. D. L 1432. [A. Wil-
helm, /ahreshefUy viii. 285 ff.]
On both sides of a small stele of white marble found at Hypata,
but now lost
Date : 196-146 b.c.
A. Award of a Chalcidian arbitral court in a dis-
pute between Hypata and Erythrae in Aenis.
B. Date, names of arbitrators and of the repre-
sentatives of the two contending states.
XXXI
Thessalians and Lamia
I. G. ix. 2. 488.
Found at Phayttus {Zarkos) ; a fragment of white marble.
Date : second century b.c.
A fragmentary record of an award, perhaps pro-
nounced by a Phayttian tribunal, between the Thessa-
lian Confederacy and Lamia.
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THE SOURCES ^3
XXXII
Thaumaci and an unknown State
I.G. ix. 2. 214.
A fragment of a stele, found at the inonastery of Antinitsa^
between Lamia and Thaumaci.
Date : second century B.C.
The inscription, in which the Lacedaemonians and
the state of Thaumaci are mentioned, is too mutilated
to be capable of restoration, but von Wilamowitz
believes that it related to the dispatch of a body of
judges from Sparta* The occasion was probably a
dispute between Thaumaci and some neighbouring
state : in 1. 9 I would read [av\{T)moieia[6ai] and in
1. 14 5i^ avTf{iroi^vvTai\ vel sim^
XXXIII
Larisa Cremaste and Pteleum
/. G. ix. 2. 520.
A stele of marble, broken at top and bottom ; found at Larisa«
Date : second or first century B.C.
A decree of Pteleum in honour of Nysander of
Larisa, who, on the occasion of a dispute between
Larisa Cremaste (Phthiotis) and Pteleum and an
appeal to Rome on the part of the former, volun-
teered to go to Rome as a member of the Ptelean
embassy.
XXXIV
Melitea^ and Narthacium
Ditt. SylL^ 307 ] L G. ix. 2. 89.
A slab of grey stone, inscribed on both sides^ found at Limdgardty
north-east of Lamia.
Date: 150-147 B.C.
^ The form MeXircia is the only one found in inscriptions and
preponderates in literature, though McXina is thrice written, perhaps
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24 INTERNATIONAL ARBITRATION
Copy of a SC. passed under the presidency of
C Hostilius A. f, Mancinus, the consul of 137 b.c.,
famous for his disgraceful surrender at Numantia,
Two envojrs from Melitea claimed, on behalf of their
state, a piece of land from which they had been
driven by the Narthacians and requested that it
might ,be restored to them by the Senate. The
Narthacian envoys, on the other hand, urged that
the land was theirs according to the laws laid down
by T. Quinctius Flamininus arid ten Roman legati
and confirmed by the Senate, and that two years pre-
viously their possession had been ratified by an arbi-
tral court The Roman Senate in the present case
passed a resolution in favour of Narthacium.
XXXV
Melitea and Perea^
Ditt. Syl/.^ 425 ; /. G. ix. 2. 205 ; S. G. D. I. 1415 ; Michel 22 ;
Hitzig, Staatsvertrdge^ No. 19, p. 15.
Found at Melitea {Avaritsa).
Date: shortly before 212 B.C.*
Award of three Calydonian arbitrators pronounced
on the occasion of Melitea and Perea coalescing in a
crv/jtiroXtTcta, so that the latter became a deme of the
former. The judgement deals with frontiers, public
land, the conditions upon which the union might be
dissolved, and legal and judicial procedure. A four-
by copyists' error : the ethnic is always McXiratcvs or McXtrocvs.
See Ditt. Syll? 425 n. i.
* Steph. Byz. writes Ili^pcia, Hesych. Iliypta. The ethnic is
IIi/pcvs.
* H. Pomtow, Neue Jakrb. civ. 788, cf. 799 ; A. Wilhelm,
fahreshrfte^ iii. 52. Raeder dates xxxv-xxxvii ca, 225 b.c.
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THE SOURCES 25
fold publication is ordered of the award, which is
witnessed by the whole Aetolian Council.
XXXVI
Melitea and Perea
/. G. ix. 2. p. xi. [M. Laurent, B. C.H. xxv. 344 ff.]
Found at Delphi, inscribed on the same stele as No, xxxvii.
Date: shortly before 212 B.C.
Fragments of 11. 1-7 of the award which is pre-
served in its entirety in No. XXXV.
XXXVII
Melitea and Xyniae
/. G, ix. 2. p. xi. [M. Laurent, B. C. H, xxv. 344 ff.]
Foimd at Delphi, on the same stele as No. xxxvi.
Date: shortly before 212 b.c.
A mutilated record of the award of arbitrators
appointed by the Aetolians to settle a frontier dispute
between Melitea and Xyniae, and of the delimitation
of their boundaries. The document is fully dated
and witnessed.
XXXVIII
Melitea-Chalae and Peumata
Perea-Phylladon and Peumata
/. G. ix. 2. p. xi.* [M. Laurent, B. C. H, xxv. 337 ff. No. i.]
Found at the north-east comer of the temple of Apollo at Delphi.
Date: 290-229 b.c.
The record of two awards pronounced by a court
of five arbitrators from Cassandrea.
* Two serious mistakes have crept into the text as given in
/. G.^ loc. cit. In L 2 the name of the third rayos is omitted, and
i^ U. 32, 33 the names of three of the witnesses are left out.
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26 INTERNATIONAL ARBITRATION
A. Setdement of a boundary in dispute between
the Meliteans and Chalaeans on the one side
and the Peumatii on the other ^ (11. 6-16).
B. Delimitation of a frontier between Pereans and
Phylladonians on the one side and Peumatii *
on the other, in confirmation of a verdict pre-
viously given by the Meliteans.
XXXIX
Angeae and Ctimene^
A. S. Arvanitopoiillos, Rev. PhUoL xxxv. 289 fif* Nos. 41, 41a
Two fragments of a block of reddish marble excavated near the
ruins of the lower town of Thaumaci : now in the Museum at
Volo.
Date : late third or early second century b.c.'*
The two texts, inscribed on the front and on the
right-hand side of the block, are unfortunately so
much mutilated that satisfactory restoration is no
longer possible. They seem, however, to contain a
record of the evidence brought forward in an arbi-
tration dealing with disputed land (41 11. 15, 22) and
boundaries (41 1. 16) and involving in some way the
^ * In the first part of this arbitration the land in question is
claimed by the Meliteans and Chalaeans against the Peumatii,
but the two claimants dispute its possession amongst themselves ;
the award assigns it to both, so that it remains undivided. In
the second case, the arbitrators had to take into account a former
verdict given by the Meliteans; after examination this is con*
firmed' (Laurent, loc. cit). But I am not convinced of the
existence of a conflict of claims between Melitea and Chalae.
* For the Peumatii see LG. ix. 2. 519; U. Kohler, Zischr.
f. Num. xil III fF. Cf. / G. vii. 3287. Phylladon (in the form
^XtaScilv) occurs in No. xxxv, 1. 13.
^ For the position of these two states cf. G. Kip, Thessalische
Studien^ 126 if.
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THE SOURCES 27
cult of Omphale (41 1. 4 ; 41a 1. 10). The editor is
probably right in regarding the verdict as favourable
to Ctimene (41 1. 22 f), but his view that at a pre-
vious hearing of the case the arbitrators were unable
to arrive at any decision (41^^ 1. 24 £) is more doubt-
ful. The judges may, as he suggests, have been
appointed by the state of Thaumaci.
XL
Phthiotic Thebes and Halus
/. G. ix. 2. p. X. [M. Laurent, B. C. If. xxv. 347 ff.]
Six fragments of a stele, discovered at Delphi.
Date : about 145 b.c
This long inscription falls into two parts :
A. Lines 1--23 record the agreement into which
Thebes and Halus enter, submitting a terri-
torial dispute to the arbitration of Maco of
Larisa and promising to abide absolutely by
his verdict.
B. Lines 24-50 contain the award of Maco and
his delimitation of the disputed frontier.
XLI
CiERiUM AND Metropolis
«
I. G. ix. 2. 261.
A slab of white marble, broken above and on the left, found at
Cierium {Pyrgo-Mataranga).
Date : between a.d. 15 and 35.
The inscription comprises three documents :
A. Fragmentary record of the result of an arbitra-
tion undertaken at the request of C. Poppaeus
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28 INTERNATIONAL ARBITRATION
Sabinus ^ by the crwchpiov of Thessalians at
Larisa (11. i-6).
B. Letter to Sabinus from the y/oofi/xarevs tQp
cvviBpcjv containing an account of the same
arbitration (11. 7-16).
C. Letter to Sabinus from the orparriyo^ of the
Thessalians, reporting the same facts (11. 16-
23)-
XLII
Phayttus and Ericinium
/. G. ix. 2. 487. Cf. 'Apx- 'E^. 1912, 65.
Fragment of a white marble stele, found near Phayttus {Zarkos).
Date : early second century B.C.
No continuous sense can be extracted from the
fragments which are extant and legible : they refer,
inter alia, to laws of Ericinium and of the Perrhae-
bians dealing with the sale and purchase of real
property. We cannot determine whether the case is
one between states or individuals. Kern says :
* Videtur urbs peregrina lites inter Phayttios et Eri-
cinienses obortas diiudicasse. Dialectus indicat
Graeciam septentrionalem ; Thessalica urbs non est'
XLIII
CONDAEA^ AND AN UNKNOWN StATE
/. G. ix. 2. 521. [G. D. Zekides, "E*^. *ApX' 1901, 125.] /. G.
ix. 2. 1014 is apparently a fragment of the same inscription.
Foimd at Larisa.
Date : early third century b.c.
* See Prosopographia Imperii Romania iii. p. 86, No. 627. He
was consul ordinarius in a.d. 9, and legate of Moesia (to which
Achaea and Macedonia were added in a.d. 15) from 12 to 35.
* For the site of Condaea see 'Apx« "E^- 191 2, 80 f.
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THE SOURCES 29
Apparently a fragment of the report of an arbitral
court, recording the evidence tendered at the inquiry
into the claims put forward by Condaea and another
state in a territorial dispute. The extant portion con-
tains evidence of
# I. Ladicus of Asciu-is (11. 5~i8);
2. a citizen of Mopsium (11. 19-30) ;
3. three other Mopseates (11. 30-7)
in favour of the Condaeans. The arbitrators were
probably appointed by Larisa.
XLIV
MONDAEA AND AZORUS
7. G, ix. I. 689 ; S. G, D.I. 3205 j Ditt. Syll} 453.
Stone found in 181 2 at Corcyra, now lost.
Date : soon after 178 B.C.
Record of the award of three arbitrators, an
ApoUoniate, a Corcyraean and a Dyrrhachine, in a
territorial dispute between Mondaea (in Thessaly,
near the Macedonian frontier) and Azorus^ (in
Perrhaebia). The award is dated according to the
Thessalian and Perrhaebian calendars.
ISLANDS OF THE AEGEAN «
XLV
Paros and Naxos
Two portions of the same stele of white marble, originally set up
at Delos.
Date: 194-146 B.C.
A. /. G, xii. 5. 128.
* Oberhummer, Pauly-Wissowa, s,v,
' I omit the case referred to in my account of xxiv, since the
pertinent inscriptions are not yet published.
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30 INTERNATIONAL ARBITRATION
Found at Paros, whither it had probably been earned
from Delos.
B. /. G. xii. 5. 128 {Addenda^ p. 308) ; Hitzig, Staatsvertrage^
No. 31, p. 21.
Found at Delos ; now at Leeds.*
The first fragment contains part of a letter ifom
Eretria referring to the request made to that state to
act as arbitrator and its appointment of a court which
succeeded in bringing about an agreement between
the two litigant states. The second records the
terms of the compromise thus accepted. Paros and
Naxos agree to cancel all claims or charges brought
against either state by the other or by citizens of the
other. Sacrifices are prescribed to celebrate the
agreement, and penalties to be inflicted on the state
or individual transgressing it The document is
dated according to the Eretrian, Naxian, and Parian
calendars, and provision is made for its due publica-
tion and its communication to the two interested
states.
XLVI
Naxos and another State
K. Kourouniotes, *Apx. *E^. 191 1| p. 34, No. 23,
Fragment of a marble stele, fomid in the temple of Apollo
Daphnephonis at Eretria.
Date : early second century b.c.
The text, which is much mutilated, refers to [(tvJv-
Sticot Na^icDP oi o/ioXoy ... (1. 8),* and closes with the
names of six men described as BrnioaiaL 7rap6vT€^
* A. Wilhelniy /aAresAe/fe, viii. 289 ; E. L, Hicks,/.-^.5. xi. 260.
• Professor Wilhelm has pointed out to me that this is the -true
restoration ; the editor restores [cJi^Sticoiv ctf iwv ol p/AoXoy[€tv.
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THE SOURCES 31
(1. 9 ff.). It therefore probably refers to an inter-
national dispute, possibly the same to which No. XLV
relates, in which Naxos was one of the litigant
states and Eretria probably furnished the arbitral
court.
XLVII
Melos and Cimolus
Ditt. Syll? 428 ; /. G. xii 3. 1259 ; S. G. D. L 3277 ; Michel 14 ;
H. H. 150.
Found at Smyrna.
Date : soon after 338 b.c.
This inscription, perfectly preserved, records the
award of the Argive ha^o% in a dispute regarding the
ownership of three islets, which are assigned to the
Cimolians.
XLVIII
Eleutherna and Macedon
F. Halbherr, A. J. Arch, (first series) xi. 582 ff. : corrected by
A. Wahelm, Attische Urkunden I (^Sizb. Wien, clxv. 6), 50 ff.
The right-hand portion of a gable-topped stele of white marble ;
found at Eleutherna {Primes)^ now at Rcjtimo. ,
Date: 278-239 b.c.
This treaty between Eleutherna and the Macedo-
nian king Antigonns Gonatas contains a clause
(IK 17-22) providing that if the Eleuthernaeans fail
to send the required aid within the stipulated time
and to fulfil any of the other terms of the compact,
they shall be liable to a fine of 10,000 drachmas, the
question being decided by some state to be selected
by common consent.
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32 INTERNATIONAL ARBITRATION
XLIX
GORTYN AND CnOSSUS
/. V. Magnesia 65a, b ; 5. ff. Z>. /. SiS3> 5iS4« Wilhelm has shown
that /. V. Magnesia 75, 76 belong to the same text, and the
whole is published by P. Deiters, RhetA. Mus. lix. 565 ff.
Several of Deiters' readings and restorations are corrected by
A. Wilhelm, B. C. H. xxix. 577 and AtHsche Urkunden I {SM.
JVien, clxv. 6) 53.
Inscribed on a wall in the western portico of the Agora at
Magnesia on the Maeander ; now at Berlin.
Date : soon after 216 b.c.^
Portions of two decrees :
A (65a +75)* Decree of Gortyn, replying to a
Magnesian embassy which offered to arbitrate
in the war between Gortyn and Cnossus ^ and
asked that permission should be granted to
certain Cretans to return to their homes.
The Gortynians praise the Magnesians and
their two envoys, and reply that (i) Ptolemy
(Philopator) is adopted by them as arbitrator,
.but that (2) they cannot accede to the
proposals put forward with reference to the
Cretans settled at Miletus.^
^ t. Deiters, op. cit. 577.
' An Epidamnian decree found at Magnesia (/. v. Magnesia 46
U. 10 ff.; Ditt. Sy/I,* 259) praises the Magnesians for services
rendered to the Kotvov ra>v KprfraUmv^ and speaks of them as
SioXvo-avrcs rov Ifiu^vhjov iroXtfJuov, But that phras6 must refer to
Magnesian mediation on another occasion. Mylasa too seems to
have urged the Cretans at some time to make peace (S. G. D. I.
5x58).
• For the restoration of this passage see Wilhelm, AtHsche
Urkunden^ loc. cit. That the Asiatic Miletus is here meant, and
not Milatus in Crete, has been pointed out by Deiters, op. cit.
572 f.
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THE SOURCES 33
B (76 + 65 b). Decree of Cnossus to the same
effect and in very similar phrases. The
Cnossians add that it is not of their own
desire but of necessity that they are at war
with the Gortynians and that an arbitration
between the two confederacies is likely to lead
to the speediest settlement.
GORTYN AND CnOSSUS
S. G. D. I. 5015 : cf. p. Deiters, Rkein, Mus, lix. 572 ; A. Wilhelm,
B, C,H. xxix. 577. [F. Diimnrier, Phtlologus, liv. 205 flf.]
From the Pythium at Gortyn.
Date: soon after 216 b.c.^
Under the title ^vv6[rj\Ka Toprvi/icov koX Kp(aa[i(op]
come the terms of a peace concluded between the
two states on the request of Cnossus. In 11. 5, 6
there is a reference to an embassy of Ptolemy sent
to Gortyn, and the intervention of the king is again
mentioned in 11. 9, 10.
Part of the boundary settlement of Ptolemy on
this occasion perhaps survives in S.G.D.I. 5016,
which relates, as does the above treaty, to a struggle
between Gortyn and Cnossus for Apellonia.
LI
Cnossus and Tylissus
W. VoUgraff, B. C.B. xxxiv. 331 ff.
Lower part of a grey limestone stele found at Argos in August,
1906.
Date : about 450 B.C.
^ Blass dates it after 183 B.C., but Deiters has shown that it
must be contemporaneous with No. xlix.
14M D
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34 INTERNATIONAL ARBITRATION
This interesting archaic inscription contains the
last twelve clauses of a treaty concluded between the
neighbouring states of Cnossus and Tylissus by the
arbitration, or possibly in consequence of the media-
tion, of their common metropolis, Argos,
§§ 1-4 regulate the relations of the two states and
their citizens in the matters of
1. the calendar;
2. the right to hold real property ;
3. seizure of land for debt ;
4. frontiers.
§ 5 prescribes the offering to be made to Argive
Hera on the occasion of certain sacrifices.
J <6 directs that booty taken in war by the Cnossian
confederacy be divided amongst the confeder*
ates by the Cnossians and Argives in common.
§^ 7, 8 regulate certain religious questions at
Cnossus.
§ 9 provides for hospitality to be shown to visitors
from Tylissus or Cnossus coming to the great
festivals at the other city.
§10 secures that each state may claim the help of
the other in diplomatic negotiation.
^11 lays down the punishment for breaches of
hospitality.
The treaty is sanctioned by the Argive dXtaia and
dated : at the close a clause was subsequently added
by the Tylissians,
J 1 2, placing Tylissians visiting Argos on the same
footing as Cnossians.
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THE SOURCES 35
LII
Latos^ and Olus
F. Diirrbach and A. Jard^, B. C. If. xxix. 204 ff. Cf. A. Wilhelm,
iHd. 577.
Found at Delos in 1903 ; upper part of a white marble stele.
Date : towards the end of the second century 6. c.
A decree passed by Latos and Olus in common,
very similar in purport and phraseology to No. LII I,
from which it cannot be separated by a long interval,
since in both the same man is chief cosmus at Latos.
On the request of a Cnossian embassy, the two
states determine to refer to the arbitration of Cnossus
all their outstanding differences ; the award is to be
given within ten months, to have absolute validity,
and to be inscribed in the five sanctuaries referred to
in LI II.
LIII
Latos and Olus
Ditt. Syll.^ S^A'y S. G. D. /. 5149 ; Michel a8.
Found at Delos.
Date : towards the close of the second century b. c*
A record of a resolution passed by the citizens of
Latos and of Olus in common, on the request of
Cnossian envoys, to entrust to Cnossus the arbitral
decision of all outstanding differences between the
two states. Provision is made for the publication of
this agreement and of the arbitral awards consequent
* For the name Aarois see 5. G, D. I, iii. ^. 3, p. 333.
^ In 1. 43 the Athenian archon Sarapion is mentioned : his year
of office is dated in 102/1 by HomoUe {B. C. H. 3cvii. 155 fF.) and
Dittenberger {SylL^ 514 note 27), in 104/3 by W.S.Ferguson
(Athenian Archons, p. 8i), and in 116/5 by W. Kolbe (Die atti-
schen Archonteny p. 128 f.).
D 2
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36 INTERNATIONAL ARBITRATION
upon it in four Cretan sanctuaries and in that of
Apollo at Delos. The decisions are to be reached
within six months, i.e. before the close of the civil
year, and are to have unconditional validity, their
observance being guaranteed by a pledge given by
the states and the infliction of a fine in case of non-
compliance.
A later addition, to which the consent of all three
states is given, extends by further twelve months the
time within which judgement is to be given.
Liv
HiERAPYTNA AND PrIANSUS
S. G. D. L 5040 ; Michel 16 ; Hitzig, StacUsvMrdge^ No. 46, p. 29.
On a marble slab from Crete, now in the Ashmolean Museumt
Oxford.
Date : second (or end of third) century b. c.
In this treaty between Hierapytna and Priansus^
on the south coast of eastern Crete, it is stipulated
that any one contravening its terms may be brought
to trial before the Common Court (icow^oi^ SiKaarijpiop)^
and that the accuser if successful shall receive
one-third of the sum assessed as penalty, the
remainder being paid to the aggrieved state (11. 46-52).
Outstanding disputes are to be settled with all speed
in a court agreed upon by both states, and future
claims shall be decided before a tribunal to be
appointed by a state agreed upon and in accordance
with the treaty {(rviifioXov) drawn up by both the
contracting parties (11. 57-70),
The reference here, though perhaps primarily
to disputes between citizens, seems to cover also all
existing and prospective international differences.
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THE SOURCES 37
LV
HiERAPYTNA AND MaCEDON
5. G. D. L 5043, corrected by A. Wilhelm, Attische Urkunckn I
(Stzb. Wien, clxv. 6), 50 flf.
Two fragments of grey stone, written on front and back ; found at
Hierapytna.
Date: 278-239 B.C.
This treaty, concluded with Antigonus Gonatas,
contains a clause (11. 22-25) exactly similar in purport
to that of No. XLVIII, though slightly differing
from it in expression.
LVI
Itanus and Hierapytna
Ditt. Syll? 929; S.G.D.I. 5060; L G.Rom, i. 102 1: cf.
M. Holleaux, Hermes^ xxxix. 78 ff. ; G. Colin, Rome et la
Grice^ Sio f. ; "E^. 'Apx* 1908, 238. [/. v. Magnesia 105.]
Portions of two copies of the same text have survived : (A) On
a slab of grey stone, complete above, but broken below, found
in the monastery of Toplu, near the ancient Itanus, are 11. 1-87 ;
(B) LI. 28-141 are on a stone found at Magnesia on the
Maeander, now in Berlin.
Date : 139 b.c.
This long document opens with the date and the
names of the eighteen Magnesians composing the
arbitral tribunal and a reference to the circumstances
leading up to its appointment (11. i-i i). After some
observations on the value of peace and concord and
the duty of friendly states to settle any disputes
which may arise (11. 11 -18), the judges record the
Roman intervention and request to the Magnesians
to undertake the task of arbitration, the considerations
which led the state to concur, and the details of the
appointment of the court and the hearing of the
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38 INTERNATIONAL ARBITRATION
evidence (11 18-31). An attempt to settle the
dispute by agreement having failed, the passing of
a formal award and the publication of the present
report upon the case became necessary (11. 31-37).
The question at issue is then defined more precisely,
and the Senate s instructions are quoted in which the
point to be settled by the court is carefully limited
(11. 37-54). The statement of the actual award
relating to one part of the dispute (11. 54-56) is
followed by a full report of the evidence upon which
the decision is based (11. 56-94). The evidence
relating to the other question at issue, the possession
of the island of Leuce {Kouphonist)^ is then stated at
considerable length, and some remarks are made
upon the weakness of the Hierapytnian claim (11. 94-
141) : though the award itself is lost, there can be no
doubt that in this case also it was favourable to the
Itanians.
ASIA MINOR AND THE ADJACENT ISLANDS
LVII
Ilium and its neighbour-States
C./.G.3S98.
Fragment of a slab of white marble, found at Chiplak^ near Ilium>
now in Paris.
Date : second century b.c.*
A fragment of a decree of Ilium in honour of four
states — Rhodes, Delos, Paros ^ and another — and of
the judges sent by them to settle a dispute,
apparently between Ilium and a state or states in the
vicinity. Special measures are taken for the publica-
tion and the inscription of the decree.
^ B^rard, Arb. xxxiv, restores Jlapi[avm'\ in 1. 1 1 in place of
napi[o)v], which Boeckh preferred. Paros seems to me far more
likely than Parium. ' Boeckh dates it before 188 b.c.
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THE SOURCES 39
LVIII
Mytilene, Methymna, Antissa and EresOs
F. Diirrbach and A. Jard^, B, C.H, xxix. 210 ff., to which 5. G.D.L
319 must be added. Cf. A. Wilhelm, B. C, H. xxix. 577.
Found at Delos in June, 1903, between thePorinos Oikos and the
Artemisium.
Date : 199-168 b.c.
A fragment of a treaty of alliance concluded by
the four Lesbian cities. No continuous sense can
be derived from the mutilated text, but the final
clauses^ deal with the settlement of disputes between
the contracting states, which are to be determined by
agreement or by judicial award (ra ScaXvdeWa ^
KpL0€v[Ta] 1. 47) ; we cannot tell whether the decision
was to rest with an external tribunal, but such seems
the most probable hypothesis.
LIX
Pitane and Mytilene
Ditt. O. G. L 335. [/. V. Pergamon 245.]
On twenty-five fragments of a large marble stele, found at
Pergamum.
Date : 150-133 b.c.'
This lengthy inscription consists of three parts :
A (11. 1-45). Decree of Pitane, thanking the
Pergamenes, who have sent an embassy
to restore, if possible, friendly relations
between Pitane and Mytilene, and accepting
them, upon certain stated conditions, as
^ From 1. 43 onwards, according to the editors ; but perhaps
the commencement of this section should be placed somewhat
earlier, say at 1. 39.
^ See Dittenberger's note, loc.cit.
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40 INTERNATIONAL ARBITRATION
arbitrators in every outstanding difference
between the two states.
B (11. 46-88). Decree of Mytilene, with the same
purport and in almost identical terms.
C (11. 89-156). Decree of Pergamum, expressing
its acceptance of the task of arbitration and
containing a report on the case, a summary of
the evidence brought forward and the award
pronounced by the court.
LX
Sardis and Ephesus
Ditt. 0. G. L 437 ; Hitzig, StaatsvertrdgCy No. 36, p. 24 f. ; / (?.
ttom, iv. 297. [7. V, Fergamon 268.]
Five fragments of a slab of bluish marble found at Pergamum.
Date: 98 b.c.
Under the general title \tvv6riKai %apZia]vS}v
ic[at 'E^ccrt]«i/ come the following documents :
A (11. 2-25). A letter from the proconsul
Q. Mucins Scaevola to the Sardians, referring
to the games founded in his honour and
urging them to settle their dispute with the
Ephesians.
B (11. 26-55). A similar letter to the Ephesians.
C (11. 56-96). A treaty^ between Sardis and
Ephesus embodying the settlement of all out-
standing disputes and regulating the relations
between the two states. If either should
transgress the agreement, the question is to
* Ditt. O.G.L 437 note 8 claims that the whole of this
agreement was brought about by arbitration : but Pergamum is
spoken of as ly /ico-ircvovo-a ras (rvvfty^cas iroXis (1. 76), a phrase
which involves mediation but not necessarily arbitration.
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THE SOURCES 41
be referred to arbitration. The final clauses
deal with the publication and ratification of
this treaty, and record the names of the
envoys who represented either state in the
negotiation of this settlement
LXI
Samos and Priene
Ditt. O.G.L 13; Michel 36; /. v, Friene 500; U. von
Wilamowitz, Stzb, BerL 1906, 39 fF. [Hicks 152.]
Stone found in Samos, now in the Ashmolean Museum, Oxford.
Date: about 283-282 B.C.*
Rescript of Lysimachus, King of Thrace (306-
281 B.C.), informing the Samians of his arbitration in
the dispute between them and the Prienians. The
circumstances under which the trial was undertaken
are detailed (11. i-ii),and the arguments used by the
Prienians in support of their claim are summarized
(11. 11-27). The counter-arguments of the Samians
are next stated, but the loss of the lower part of the
stone has left only the opening phrases extant
(11 27-32).
LXII
Samos and Priene
S, G. D. L 3758 ; /. V. Friene 37 ; of. U. von Wilamowite, Stzb.
BerL 1906, 41 ff. [/. G. Brit, Mus. cccciii.]
On a number of blocks of the south anta and the south cella-wall
of the temple of Athena at Priene : now in the British Museum.
Date : early in the second century b.c."
* See F. Hiller von Gaertringen, /. v. Friene^ p. 209 ; B^rard,
Arb. p. 64 f., argues for the date 287 B.C.
* B^rard, Arb. p. 66^ dates this arbitration in 242-239 B.C., but
this is too early. Hiller von Gaertringen (/. v. Friene^ p. 43)
places it between 197 and 190 b.c., E. Preuner {Hermes^ xxix.
530 fF.) about 180 B.C.
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42 INTERNATIONAL ARBITRATION
Record of an arbitral award settling a territorial
dispute between Samos and Priene. The title Hpti/-
vi<ii{v /cat S\aiii(av is followed by a list of the five
Rhodian arbitrators, a reference to the question at
issue and the terms of the appointment of the tri-
bunal ; next come the names of the official repre-
sentatives of Samos and Priene at the trial (11. 1-20).
A brief account of the inquiry leads up to the state-
ment of the award and a record of the names of the
officials to whom copies of the document were
delivered (11. 20-44). Then follows a full account
of the evidence adduced by the Samians in three
speeches and by the Prienians in two (11. 44-118),
and finally a summary is given of the considerations
which led the tribunal to its decision (11. 1 18-157).
To this report is appended an exact statement of
the position of the frontier between Samian and
Prienian territory and of the boundary-stones set up
under the direction of the Rhodians (11. 158-170).
A number of small fragments collected in /. v,
Priene 38 probably belong to this same record.
LXIII
Samos and Priene
/. V, Priene 40. [/. G. Brit Mus. cccciv.]
From the cella-wall of the Athena temple at Priene : now in the
British Museum.
Date : shortly before 136 b.c.
Latter part of a SC. dealing with the Prienian
claims to the disputed territory and the many arbitral
awards given in their favour ; it confirms the Rho-
dian decision recorded in No. LXII.
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THE SOURCES 43
LXIV
Samos and Priene
Ditt. SylL^ 315 ; /. v. Priene 41. [/ G. Brit, Mus. ccccv.]
Four fragments of the cella-wall of the Athena temple at Priene ;
now in the British Museum.
Date: 136 b.c.
Copy, almost complete, of a SC. passed under the
presidency of Ser. Fulvius Flaccus, the consul,
couched in the usual phraseology. In view of the
conflicting claims to a piece of land brought forward
by Samian and Prienian envoys, the Senate resolved
to confirm the award of the Rhodian arbitrators
recorded in No. LXII.
LXV
Samos and Priene
/. V, Priene 42.
A number of fragments of the wall of the Athena temple at Priene.
Date: after 133 b.c.
Report drawn up by the (Mylasian i*) arbitrators
appointed to settle the dispute between Samos and
Priene in accordance with a SC. They confirm the
award and the frontier-delimitation of the Rhodians
and give an account of their restoration of the
boundary tokens with the assistance of representatives
of both states, who are highly commended for their
services. Part of the description of the boundary
and of the steps taken by the arbitrators to mark
it permanently survives in a passage of forty-four
mutilated lines (11. 40-83).'
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44 INTERNATIONAL ARBITRATION
LXVI
Magnesia on the Maeander and Priene
Ditt. Syll} 928 ; /. v. Priene 531 : cf. A. WiWi^lm, Jahreshefley vi.
n ; M. HoUeaux, Eev. Et Anc. v. 221 ; G. Colin, Rome et
la Grkce^ 509 f. [/. v. Magnesia 93.]
On a block of white marble, inscribed on all four sides, found in
1893 in the Magnesian Agora.
Date : soon after 190 b.c.^
A (11. 1-33). Decree of the Magnesians relating
the circumstances of the arbitral decision
given in their favour by a Mylasian tribunal
and praising those who had represented the
state at the trial. Provision is made for the
public inscription of a number of documents
pertinent to the case.
B (11. 34--63). Copy of the letter of the praetor
M. Aemilius to the state of Mylasa, request-
ing it to undertake the task of arbitration in
accordance with a SC, of which the letter
contains a copy.
C (lost). The Mylasian decree followed, accept-
ing the task and providing for the appoint-
ment of the tribunal.
D (lost). The Mylasian reply to M. Aemilius
has similarly perished.
E (11. 64-90). The award, of which only a frag-
ment survives, deals with and rejects the
evidence brought forward by the Prienians.
^ G. Colin, op. cit 509 note 2, shows that a certain Lepidus
was urban praetor at Rome in 143 b.c. ; if, as he supposes, this is
the same as the M. Aemilius here referred to, we must date this
inscription in 143, considerably later than previous editors,
judging by the character of the writing, had done.
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THE SOURCES 45
F (11. 91-106). A list of the Magnesian eySticot
is appended, originally followed by the
names of the other representatives of the
state.
LXVII
Priene and Miletus
/. V, Priene 27. [/. G. Brit, Mus, ccccxii.]
From the wall of the Athena temple at Priene ; now in the British
Museum.
Date : soon after 200 b.c.
The closing portion of the letter of a king or pro-
consul ordering the demarcation of the boundary
between the Prienian and the Milesian territory, in
accordance with an arbitral verdict previously pro-
nounced by the people of Smyrna.^
To about the same time belongs /. v. Priene 28,
part of a treaty between Priene and Miletus relating
to measures taken by the two states for mutual
defence and to the conduct of trials between their
respective citizens.^ We cannot, however, say for
certain whether this treaty was the result of arbitra-
tion, mediation or ordinary diplomatic negotiation.
LXVIII
Priene and Miletus
/. V, Priene m.
Inscribed on the wall of the north portico of the Agora at Priene.
Date : early first century b. c.
Portions of an honorary decree, which originally
comprised more than 320 lines, recording in chrono-
^ Hicks thought of Ptolemy Euergetes as the writer, Hiller von
Gaertringen of one of the Attalid princes.
* Cf. Hitzig, Staatsvertrdge^ No. 34, p. 22 f.
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46 INTERNATIONAL ARBITRATION
logical order the services rendered to Priene by a
certain Crates. In 11. 143 ff. it recounts a quarrel
between Priene and Miletus which had been referred
to the Senate ; one at least of the questions at issue
had apparently been settled in favour of Priene by
an arbitral court representing Erythrae (11. 123 ff.,
146), but a fresh difficulty arose and the Milesians
appear to have attempted to gain the better of their
rivals by a trick (11. 149 ff., No. LXIX, L 23 8U
^€(^vyo8[t/o7fcoTa>i/]). On this last occasion the arbi^
trators were citizens of Sardis (No. LXIX, 11. 16, 20).
The mutilated condition of this inscription and of
that which follows makes it impossible for us to
follow the narrative in detail.
LXIX
Priene and Miletus
/. V, Priene 120.
Inscribed on the eastem wall of the north portico of the Agora at
Priene.
Date : early first century b.c.
This fragment of an honorary decree refers to its
recipient, whose name is not preserved, as having
gone to Sardis to represent Priene in a suit in which
the Milesians brought certain charges against the
Prienian people. The Roman Senate is also men-
tioned, and it is probable that it requested Sardis to
act as arbitrator. The occasion is almost certainly
that referred to in the preceding inscription
(LXVIII).
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THE SOURCES 47
LXX
Miletus and Mvus
S. G.D.I. 5493; / V. Priene 458; H. Knackfuss, Das Rathaus
von Miktj pp. 112 ff., No. 9.
Two fragments of a stele^ written (rroixi78dv, found at Miletus.
Date: soon after 392 B.a
The upper part of the record is lost save for the
ends of the first twelve lines {Stzb. BerL, 1901, 905).
The second and main fragment begins with the names
of the judges — in each case five in number — represent-
ing Erythrae, Chios, Clazomenae, Lebedus, and
Ephesus. The failure of the representatives of
Myus to maintain their cause in the trial leads to the
acknowledgement and confirmation of the Milesian
claim to be the rightful owners of the disputed terri-
tory by Struses (probably the Struthas of Xen. Hell.
IV. 8, 1 7 ff., Diod. xiv. 99), satrap of Ionia. The
names of the Milesian advocates at the trial are
appended.
LXXI
Mylasa and Stratonicea
A. Hauvette-Besnault and M. Dubois, B. C. H. v. loi ff.
Fragment of marble, broken above and below, found at Mylasa.
Date: after 189 b.c.
Fragment of an honorary decree of a tribe or of
the people of Mylasa, commending an individual
who, besides other services rendered to the state,
took a decisive part in a dispute between Mylasa
and Stratonicea settled by arbitration.
Sonne {Arb. xxvi) and B6rard {Arb. xlii) agree
in interpreting 11. 1-3 in this sense, but it must
be admitted that the reference to international
arbitration is highly doubtful.
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48 INTERNATIONAL ARBITRATION
LXXII
Mylasa and Alabanda
J. R. S. Sterrett, Papers of the American School^ /, No. 9, p. 26.
Found at Assus, below the bouleuterion.
Date : second century b. c.
A record of the honours paid to Lanthes, probably
a citizen of Assus, for services rendered by him
as judge to four states, of which Mylasa and Alabanda
are two. Here again the reference to international
arbitration is far from certain.
LXXIII
Mylasa and another State
Le Bas-Waddington 423. Ath. Mitt. xv. 265 f. probably belongs
to this or to the following inscription.
Found at Mylasa.
Date : not before the second century b.c.
Fragment of the report of a frontier-commission
to determine the boundaries between Mylasa and a
neighbour-state.
LXXIV
Mylasa and another State
Le Bas-Waddington 424.
Found at Mylasa, to the west of the city.
Date : not before the second century b.c
Fragment of the report of a frontier-commission,
like No. LXXIII.
LXXV
Calymna and Cos
Ditt. Syll} $12) S.G.JD.L 3591. [/. G, Brit. Mus. ccxcix.]
A slab of white marble, inscribed on front and back : discovered
at Calymna, now in the British Museum.
Date : second or first century B.C.
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THE SOURCES 49
A sum of money had been lent to the Calymnian
state by two Coans, Pausimachus and Hippocrates,
The heirs of the former, probably his grandsons,
subsequently claimed the return of their share of the
loan ; the Cal3rmnians, however, maintained that the
debt had been repaid and that they were no longer
under any obligation. The Cnidians were asked to
arbitrate, and gave their award in favour of the
Calymnians.
The inscription consists of four parts :
A (11, 2-9). The oath taken by members of the
Cnidian tribunal.
B (11. 10-52). Directions regarding the production
of evidence and the conduct of the trial*
C (11. 53-82). A statement of the case for the
claimants and of the amount of their claim.
D (11. 83-90). A record of the verdict and list of
the advocates on each side.
The case cannot be regarded as one of interna-
tional arbitration in the full sense, since the claimants
were private citizens of Cos. Yet the Coan state
appears to have taken up their cause,^ and it may
therefore be treated as one between the two states
concerned.
LXXVI
Calymna and Cos
S.G.jD. 1.3592.
Found at Calymna, on the road leading from the modern town to
the port of Linari.
Date : as No. lxxv.
This fragment clearly refers to the dispute between
» Ditt. Syil.^ 512 note 8.
149a £
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50 INTERNATIONAL ARBITRATION
the sons of Diaporas ^ and the Calymnian state, and
perhaps contained a summary of the evidence ; in
its present mutilatedcondition, however, no continuous
sense can be derived from it
THE PONTUS^ AND UNNAMED STATES
LXXVII
Callatis and an unknown State
S. G. D. I. 3089.
Stone slab, found in the district' of Yenibazar; now in the
residence of the Metropolitan at Shumen.
Date: about 133 b.c
A decree of Callatis in honour of Stratonax son of
Lygdamis of ApoUonia, who acted as mediator or
arbitrator in a war between Callatis and S . . . .^
LXXVIII
Two UNNAMED StATES
C Jire^ek, A, E. M, x. 190.
Found at Jaly Ud Orman, 18 km. north of Caliacra in Scythia
Minor.
Date : not before the first century b.c.
Sonne i^Arb. XLIV) has conjectured that this
fragmentary record, in which the words [rja vdKt\,
opo% and [KaXX]artai/o>[i/] are distinguishable, refers to
a boundary delimitation. But this interpretation is
very doubtful.
^ This, not Diagoras, is the form used consistently throughout
the record.
* 'Stratonis est urbs finitima apud Sprunerum tab. xvii'
(Sonne, Arb. xxxvii).
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THE SOURCES 51
LXXIX
Two UNNAMED STATES
Olympia v. 49.
Fragment of a statue-base found at the north-west comer of the
temple of Zeus at Olympia.
Date: second centnify^.c. ?
A fragment which contains the word KpUri^ three
times and a reference to oyAvoM^ and may perhaps
refef to an arbitration between two states-
LXXX
Two UNNAMED StATES
Olympia v. 51.
Two fragments, inscribed on both sides, found at Olympia in
1876 and 1878.
Date: third century b.c.
The text is too fragmentary to be interpreted with
certainty, but it may refer to the settlement of a
dispute between two states. The word Avfia[(|Q>i^
may point to Dyme as a party to the arbitration, but
the restoration is not certain, as the word may have
been Avfia[i/]Q>i^.
LXXXI
Two UNNAMED StATES
/. G. ix. I. 690 ; 5. G. D. L 3204.
Stone found at Corcyra in 181 2.
Date: early in the second century b.c.
To judge by some phrases which have survived on
the mutilated stone, it seems to refer to a boundary
dispute settled by arbitration. The Athamanians,
mentioned in 1. i, may be one of the contesting
E 2
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52 INTERNATIONAL ARBITRATION
states, and the provenance of the stone suggests
Corcyra as the arbitrating state.
LXXXII
Two UNNAMED States
/. G. xii. I. 1031 ; S* G. D, /. 4319.
Found at Porthmus (Tn5tomo\ on the island of Carpathus.
Date : second century B.a
The latter part of the record of an agreement
made between two states which requested a third to
act as arbitrator or mediator. The names of the
states are not preserved, but it is almost certain that
Carpathus, or perhaps Brycus, was either one of
the disputants or the mediating state.
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II
DISPUTES SUBMITTED TO ARBITRATION
One of the fundamental problems facing the
student of International Law is to determine the
limit, if limit there be, of the disputes susceptible of
arbitral settlement. No final answer to the question
his yet been reached, but the experience of the last
century has enabled lawyers to formulate at least a
provisional reply. * It is clear from the experience
of the past,' Sir H. Erie Richards has recently said,*
'that in what may be called lesser disputes there
need be no limitation, and the number of treaties
already in force by which nations are bound to
arbitrate in all such cases is proof that the view has
become generally accepted. But subject to a few
exceptions . . » in all Arbitration Treaties hitherto,
the agreement to arbitrate has been limited to
questions of a legal nature, or to questions arising on
the construction of Treaties, and there has been
added a clause excepting from arbitration disputes
involving matters of vital interest or the independence
or honour of the contracting parties/ It will be our
task in the present chapter to estimate, in outline at
least, the contribution made by the experience of the
Greeks towards the answer to this question.
By far the largest class of disputes submitted
to arbitration in the ancient Greek world appears to
have consisted of those which arose out of conflicting
* The Progress of International Law and Arbitration (Oxford,
191 1), p. 19.
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54 INTERNATIONAL ARBITRATION
territorial claims. That such was really the case and
that we are not misled by the chance preponderance
of such disputes amongst those which are recorded
in our extant sources is an inference we can hardly
fail to draw from the terms of a treaty of alliance
concluded in 418 b,c. between the Spartans and the
Argives. One of its clauses runs thus : *
at 8c TLVi rav iroXtoii^ ^ dfi<^tXXoya, If rav hrro^ ^
Tov itcTo^ ncXoTToiwcra^, aire Trcpl opwv acre irepl
oXXoi TLVO^, SuLKpidrJii^ev.
But the dispute * regarding frontiers ' is one which
may take various forms. There are occasions^ for
example, on which the only question raised is one of
possession and not one of frontier-delimitation, — in
which, that is to say, the limits of the area in dispute
are acknowledged by both parties, and no survey or
examination of boundaries is required. Such was
Ae dispute between the Melians and the Cimolians,
both of whom laid claim to the rocky islets of
Polyaega, Eterea, and Libea,^ just as at an earlier
period Sigeum had been in dispute between Athens
and Mytilene * and Salamis between Athens and
Megara.*
Sometimes, however, the issue was less simple ; it
* Thuc. V. 79. 4. In /. G. iv. 556 (H. H. 120 : of. A. Wilhelm,
J^hein. Mus. Ivi. 571 ff. ; M. Frslnkel^ib. 233 ff.) there is a reference
to the settlement of territorial disputes between the states which
joined in the Koivrf tlprpni of 362-1 b-c, but no details can be
learned from the fragmentary text.
' XLVII.
' Hdt. V. 95 ; Strabo xiiL 600 (Demetrius of Scepsis) ; Diog.
Laert. i. 74 (Apollodorus). Cf. Arist. Rhet i. 15. 13, p. 1375 b.
* Strabo ix. 394 ; Plut. Solon 10 ; Diog. Laert. i. 48 ] Aelian,
Var, Hist. vii. 19 ; Quintil. v. 11. 40. Cf. Arist. Rhet loc. cit
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DISPUTES SUBMITTED 55
was the precise position of the frontier-line which
was in question, and in such cases the task of the
arbitrators was of a slightly different character.
Instead of treating the area in dispute as a single and
indivisible whole, which must be assigned to one or
other of the contending parties, they were expected
to draw a line of demarcation between the territories
of the two states. Such was the task with which the
Megarian tribunal was entrusted, on the command
of the Achaean League, by the Corinthians and Epi-
daurians,^ or that which the Thyrrhean land-judges
(yaoSifcat) undertook to perform for Metropolis and
Oeniadae in Acarnania.^ Or again, the dispute
might centre round the possession of certain rights,
falling short of absolute ownership, over a city or
territory or temple, as when Corinth and Corcyra
submitted to arbitration their respective claims
to Leucas,® or the Delians and the Athenians
contested before the Amphictiones the administra-
tion of the temple of Apollo at Delos.*
Some of the arbitration records give us at least
indications of the causes which might make the
possession of a certain area, small in itself, of great
or even vital importance to a state. The value of
the land was sometimes due to the temple or temples
situated therein. The age-long dispute between
Spartans and Messenians for the possession of the
ager Dentheliates * was primarily due to the fact
^ XV. * XXVII. • Plut. Them. 24.
* Dem. xviil 134 ; Hyper. y^«^. 67, ed. Kenyon ; Vit X Orat,
850 A.
* See E. Curtius, Peioponnesos^ ii. 157 ; C. Bursian, Geographies
ii. 169 f. ; W. Kolbe, Stzb. BerL 190s, 61 f., Ath. Mitt xxix. 364 ff.
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56 INTERNATIONAL ARBITRATION
that within its boundaries lay the sanctuary of
Artemis Limnatis. Indeed, Tacitus lays all the
emphasis upon this fact ; the dispute is one de iure
templi Dianae Limnatidis^ and the land around
it takes a very secondary place in his narrative,
although in the official record of the Milesian award
the land alone is referred to and the temple is not
even mentioned.* A long feud between the
Delphians and their neighbours of Amphissa centres
around the possession of sacred precincts as well as
round the frontier-line between the two states.^
Similarly the contest between Melitea and Nartha-
cium for a piece of land, part of which at least is
described as ^(apiov ifyqyiov,^ is rendered all the more
important. by the fact that the disputed territory
contained, as we learn from the Narthacian account,
several sanctuaries,* the possession of which would
confer religious prestige and perhaps also material
advantage on the holders. Somewhat analogous is
the oft-recurring dispute between Delphi and certain
of her neighbour-states regarding the extent and
frontiers of the land sacred to Apollo, some of the
episodes in which we learn from the celebrated
bilingual inscription engraved on the south wall of
the temple of Apollo.'
In other instances the question at issue was the
possession of springs or streams, which might be of
the utmost importance to the agricultural or pastoral
section of the communities interested,'' or of a harbour
^ Tac. Ann, iv. 43. ' i, 11. i, ii, 21, 53, 63, 67.
^ XXII, 1. 8 f. * XXXIV, 1. 20.
^ XXXIV, 11. [44], 49. Cf. XXIII, XXV.
• XXVI. ' III, [Vl], VII, XXV.
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DISPUTES SUBMITTED 57
which might affect vitally the ability of the state to
export its surplus produce and to import the
commodities required for food or for manufacture.^
Once more, the value of the land might arise from its
strategic importance. The Rhodian arbitration
between the Samians and the Prienians decided the
possession of an area which, though it does not
appe^ to have been extensive, contained a fortress
of such strength and so situated that it was chosen
as their base of operations by the Prienian democrats
in their attack on the tyrant Hiero, who dominated
their city,^ and possibly the 'mountain', for the
possession of which Erythrae and Hypata contended,
gave to its possessors a strategic advantage over
their neighbours.^
But though the most prolific source of inter-
national disputes was, as has been said, the contested
ownership of territory, this formed by no means the
sole ground of appeal to arbitration. The failure of
a state to pay a sum of money due to another in
virtue, of some compact sometimes proved the
occasion of such an appeal. Thucydides tells how
the Eleans and Lepreates undertook a war in
common, at the conclusion of which the Eleans
resigned their claim to half the conquered land upon
condition of the annual payment of one talent by the
Lepreates to Olympian Zeus. The cessation of
these payments soon after the outbreak of the
* [hi], XII C, 1. 5 (of. A. Wilhelm, Neue Beitrdge zur griech.
Inschrifienkunde I {Stzb. Wien, clxvi. i), p. 26 ff.), xxix, 1. 6.
In LXVlll, 1. 146 (cf. 128 f.) [to irfrqim to Kar]a tov cunrXow
figures.
* LXII, 11. 109 ff. » XXX.
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58 INTERNATIONAL ARBITRATION
Peloponnesian War led to a dispute, which was
submitted to Spartan arbitration.^ The refusal of
the Spartans to pay a fine inflicted upon them by
the Achaean League formed the immediate occasion
of a reference to arbitration, although in that
instance the real point at issue was the possession
of the Sciritis and Aegytis, which were claimed both
by Sparta and by Megalopolis.* A somewhat similar
example is that in which two private citizens of Cos
lent a sum of money to the Calymnian state, and
after the lapse of a number of years the heirs of one
of the lenders reclaimed from the state of Calymna
their share of the loan, which was refused on the
ground that payment had already been made. The
dispute was referred to the Cnidians for decision.^
At first sight this does not appear to be a genuine
case of international arbitration, but it may best be
treated as such inasmuch as the Coan state seems
to have taken up the pecuniary claims of its citizens
and made them its own.* In such disputes the
court is called upon not to assess, but to award : in
this aspect they are similar to the first class of terri-
torial disputes already discussed.* But there are
also financial cases which correspond to those in
which a frontier-line calls for demarcation — those,
namely, in which the task of the court is that of
assessing the compensation due to a state which has
suffered injury at the hands of another. Thus the
Cleonaeans are called upon to assess the sums to be
paid by the Arcadians and Stymphalians for damage
done at Olympia during the Arcadian tenure of the
^ Thuc. V. 31. * II. ' LXXV, LXXVI.
* LXXV, 11. 12, 70 flf. * Page 54.
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DISPUTES SUBMITTED 59
sacred precinct,^ while the compensation to be paid
to Argos for the attack made upon the city by
Aratus in 240 B.C., upon the death of the tyrant
Aristomachus, was fixed at thirty minas by a Man-
tinean tribunal. On the latter occasion, however,
Aratus, though General of the Achaean League,
appears to have acted on his own responsibility and
consequently to have borne in person the penalty
for his rash attempt.^ An interesting example of
the employment of the arbitral mode of settlement
in a somewhat similar dispute is half revealed, half
concealed, by a difficult and mutilated record, one
copy of which has been discovered at Troezen® and
a second at the Epidaurian Asclepieum.* It relates
to a feud between Troezen and one of the neigh-
bouring states, probably Hermione. It would seem*
that there was a piece of border territory in dispute
between the two states and that a controversy also
centred around the rights of fishing in certain waters.
The feud led to the suspension of friendly relations
between the states, and one of them took advantage
of this to raid the territory of the other, seizing
houses, lands, and persons. Finally a compact was
concluded by which the disputed territory andfisheries
were acknowledged to be common property, all claims
arising out of the predatory raids were cancelled, and
provision was made for the due compensation of those
who had suffered loss in the reprisals. In order, how-
ever, to give greater binding force to the compact, the
two states agreed to send to Athens and request the
* XL » Plut. Arat 25. ' xiii. * xiv.
* I follow the explanation given by A. Nikitsky, Hermes,
xxxviii. 406 ff.
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6o INTERNATIONAL ARBITRATION
appointment of a tribunal, consisting of three mem-
bers, to sanction the agreement and set up copies of
it at Calaurea, Epidaurus, and Athens.* About
a century later, when the Magnesian envoys charged
the Prienians with having expelled the Magnesians
from land which was theirs by right, the Prienians
retorted by accusing the Magnesians of injuries for
which they demanded suitable compensation. The
inquiry was delegated to the Mylasians, who were
instructed by the praetor, M. Aemilius, 'if the
injuries have been done by the Magnesians, to assess
them at whatever sum appears to be right and fair/*
A case between Phayttus and Ericinium apparently
turns upon some question of sales and purchases,
but its exact nature cannot be determined owing to
the mutilated condition of the record.^
' Questions arising on the construction of Treaties'
are recognized by modern international lawyers* as
amongst the difficulties susceptible of arbitral settle-
ment. In this view the Greeks shared, as we may
infer from the references in the first book of Thucy-
dides to the terms of the Thirty Years' Peace,* and
although the repeated appeal to arbitration was then
rejected time after time because the tension of national
feelings was too great to acquiesce in any pacific
settlement which might lower the national prestige,
yet there must have been many occasions, both
before and after the Peloponnesian War, on which
arbitration prevented an outbreak of hostilities.
Two examples from later Greek history may be
* XIII, 11. 15 ff.
* Lxvi, 1. 59 f. ^ XLii. * See above, p. S3«
* Thuc. i. 78. 4, 140. 2, 144. 2, 145, vii. 18. 2.
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DISPUTES SUBMITTED 61
cited as showing that a belief in the efficacy of
arbitral settlement of the disputes relating to the
interpretation of treaties still survived. We possess
the texts of treaties concluded by Antigonus
Gonatas, who reigned from 278 to 239 b.c., with the
Cretan cities of Eleuthema^ and Hierapytna* : in
both a clause is inserted in very similar, though not
identical, terms, to the effect that, if the Cretans
fail to send to Antigonus the stipulated aid *or
break the treaty in any way whatsoever ', they shall
pay a fine of ten thousand drachmas
iv rfJL (rvvaip€6eUn)i ttoXci cicicXT^rcut.'
That is to say, if Antigonus charges either of the
Cretan cities with infringement of the terms of the
treaty, a state is to be chosen by mutual agreement
to act as arbitrator, and, if the Cretans are declared
guilty, they are to pay the stipulated fine. In these
cases the arbitration extends merely to the question
whether the treaty has, or has not, been infringed :
with the assessment of damages it has nothing to
do. In a treaty between Hierapytna and Priansus
it is stipulated that, should any one contravene the
articles of the agreement, whether magistrate or
private citizen, an action may be brought before the
common tribunal, the accuser estimating the amount
of the damages ; the accuser, if he secure a con-
demnation, is to receive a third of the sum thus
assessed, while the remainder is paid to the aggrieved
state.* This case, though not strictly an example of
arbitration, forms a close parallel to arbitral pro-
cedure.
* XLviii. * Lv. ' XLvni, 11. 17 ff. ; lv, 11. 22 ff.
* LIV, 11. 46 ff.
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62 INTERNATIONAL ARBITRATION
So far thosie cases alone have been considered in
which the question at issue is a definite one — ^some
specific act or abstention on the part of one of the
states concerned. Sometimes, however, the dispute
is of a more complex character, and it is a whole
situation rather than an isolated act which the
arbitrators are asked to consider. Such an appeal
seems to have been the occasion of the award
issued by the Argives about the middle of the fifth
century B.C., in which the relations between Tylissus
and Cnossus are regulated and set upon a clear
footing.^ The surviving portion of the record deals
with the following amongst other questions : the
calendar, the rights of property, seizure of land for
debt, frontiers, the partition of booty, religious
observances and the treatment of citizens of either
state while visiting the other. The Argives avail
themselves of the opportunity to make more precise
in certain details the relations of the Tylissians and
Cnossians to themselves. Somewhat similar cir-
cumstances are dealt with in the award issued by
three Calydonian arbitrators. ^ Melitea and Perea
had amalgamated to form a single state. But the
process had raised certain difficulties : the union
might not be permanent, and it was important to
decide from the outset the position of each com-
munity in the event of a dissolution of the crvft-
TTokireia. Arbitration is therefore invoked to
determine the frontiers of the two communities,* to
prevent the alienation by the combined state of the
public land of Perea,^ and to decide the proportions
in which the debts and financial obligations of the
* LI. 2 XXXV. » 11. 3-12. * 11. 12-16.
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DISPUTES SUBMITTED 63
state should be distributed^ Other matters dealt
with relate to the payments for local purposes to be
made to the Pereans * and the trial of minor cases
in Perea at regular assizes so long as the crvftTroXircta
lasts.^
In other documents the arbitrators are explicitly
directed to put an end to all differences outstanding
between state and state, or claim to have succeeded
in this task. Although the Pergamenes volunteered
to arbitrate between Pitane and Mytilene only in the
dispute over the possession of certain territory, they
were invited to settle not this question alone but all
questions at issue between the states, ' so that no
charge or contention relating to any dispute should
be left unsettled/ * Similarly the men of Latos and
Olus submitted to the Cnossian state the arbitration
TToXt iroprl TToXtj/ irdvra TrepX irdvrcovJ^
The most precise statement of the effect of an arbitral
decision in such circumstances is found in the award
issued by the Eretrian judges who had effected
a settlement between Paros and Naxos,
* For the future private citizens shall not be
allowed to bring any suit against the states
arising from charges or injuries prior to this settle-
ment; nor can any suit be any longer brought
against the Naxian state by the Parian state, nor
by the Naxian state against the Parians : nor shall
any debt or charge or injury whatsoever be
brought up by any private citizen against the
states, nor any charge against a private citizen
» U. 16-23.
» 11. 23-28. » 11. 28-31. * Lix, 11. 35 ff., 77 flf., 118 f.
* Liii, 11. 9 flf. ; so also lii, 1. 7 f. Cf. [xviii, xix,] liv.
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64 INTERNATIONAL ARBITRATION
arising out of charges or injuries brought against
the states prior to this settlement/ *
All disputes, that is, whether of state and state, or
of state and individual, are simultaneously ?ind finally
settled by the terms of the agreement, which does
not, however, affect the relations of citizen to citizen.
A number of examples have been recorded in
which war, though not averted, was cut short by the
acceptance of arbitration on the part of both the
belligerent states. These may be considered here,
although in the majority of such cases we learn
little or nothing of the precise disputes which the
arbitrators were called upon to adjust. The earliest
example on record is that in which the Corinthians
intervened to bring about a peaceful settlement
between Thebes and Athens in 519 b. c, after war
had been declared but before a pitched battle had
been fought.^ After the Spartan defeat at Leuctra
in 371 B.C., the Thebans seem, according to the
narrative of Polybius and Strabo, to have invited
the Spartans to submit the causes of the war to
Achaean arbitration.^ In neither of these cases,
however, was a lasting peace established, for in the
former the Thebans flagrantly violated the conditions
of the settlement by a sudden and treacherous attack
upon the Athenian forces, while in the latter the
Spartans seem to have refused the proposed reference
to arbitration, just as, in 280 b. c, the Romans rejected
the offer of Pyrrhus to act as arbitrator between the
Romans and their Italiot enemies.* It is doubtful
^ XLV B, 11. 4 flf. 2 Hdt. vi. 108.
' Polyb. ii. 39. 9 ; Strabo viii. 7, p. 384. * Plut. Pyrrhus^ 16.
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DISPUTES SUBMITTED 65
whether the intervention of Corinth and Corcyra to
bring about peace between Hippocrates of Gela and
the Sjo^acusans was an instance of true arbitration at
all,* and not rather one of mediation, and the same
may be said of the attempts made by various Greek
states, notably Aetolia and Athens, to restore peace
between Demetrius Poliorcetes and the Rhodians,
whom he was besieging in 304 b.c.* But arbitration
was sometimes, if not invariably, successful. Callatis
appears to have recovered peace by the efforts of
Stratonax of ApoUonia, though the exact circum-
stances are obscure,^ and a treaty between Gortyn
and Cnossus, which put an end to a war between
these two states, was the direct result of an arbitration
entrusted to Ptolemy Philopator of Egypt.*
In all the cases which we have hitherto examined^
the disputes submitted to arbitral tribunals are actual
and existent. Sometimes a single definite dispute is
referred to the court for settlement,* sometimes the
reference is more general, and covers * all outstand-
ing differences '.* There is one further step which may
be taken, — a step which is often regarded as peculiar
to the advanced civilization of the late nineteenth
and of the twentieth century. This consists in refer-
ring to an arbitral court some or all disputes which
may arise in the future, that is to say, in the con-
clusion of arbitration treaties. We must now examine
the ancient counterparts of these modern compacts.
At the close of his account of the Ionian Revolt,
^ Hdt. vii. 154. Cf. Thuc. vi. 5. 3-
^ Plut Dem, 22 ; Diod. xx. 98 f. " lxxvii.
* XLix A, II. 37 ff. .Cf. L, 11, s f., 10. * See above, pp. 53
• See above, pp. 62 if.
' LXXVII.
ff.
14M
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66 INTERNATIONAL ARBITRATION
Herodotus tells of the measures taken by the Persians
to secure the peace and good government of the
Ionian cities and the proportional incidence of
tribute.^ In the forefront he places the action of
Artaphernes in * summoning envoys from the states
and compelling the lonians to make treaties with
each other that they should submit their differences
to legal settlement and should not harry and ravage
each other '.* The words here employed — Iva hmcrC-
Sticot cTcK — ^probably have a wider reference than
that to arbitral settlement of international disputes
replacing the old system of reprisals. They probably
include the conclusion of aviifioka, providing the
basis for the decision of disputes between individual
citizens of different states, especially those arising
out of commercial relations. Yet it is almost certain
that the phrase also relates to the procedure to be
followed in case of differences arising between state
and state, and since anything of the nature of a codi-
fied international law was not as yet in existence, it
is hard to see how such disputes could be settled
save by reference to some kind of arbitral tribunal.
The value of the experiment is attested by Hero-
dotus, who characterizes it as one ' of great service
to the lonians \
Somewhat similar attempts were made in the latter
half of the fifth century b. c, though without external
compulsion, to secure the permanence of treaties
of peace or alliance by the insertion of a clause
binding the contracting states to accept an arbitral
decision of any disputes which might arise. There
^ Hdt. vi. 42 ; R. von Scala, Staatsvertrdge^ No. 44, p. 33.
« Hdt. vi. 42.
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DISPUTES SUBMITTED 67
was certainly, as we have seen,^ some stipulation of
this nature in the Thirty Years' Peace between Athens
and Sparta concluded in the winter of 446-5 b. c,
and a similar clause occurs in the Year's. Truce
between the same two powers, compelling both states
8tica9 StSwai Kara ra 7rar/>ta, ra afi^Ckoya Sik'q
The same provision is also found, though in a slightly
different form, in the Peace of Nicias (421 b.c.),
aOfov KoX o/)icoi9, Kaff on av ^wd&vrtu,^
and again in the alliance of autumn 418 b.c. between
Sparta and Argos, which refers to both peoples as
im rois urots koL ofioioLs Siicas SiSdi^a^icaTTaTrar/Dta.^
A like condition is made in the case of any other
Peloponnesian states which may join the alliance,*
while it is further stipulated that disputes between
states whether within or without the Peloponnese
shall be similarly settled, whether relating to frontiers
or to any other subject^
In later times also the same method of dealing
with contingent disputes is sometimes employed.
Thus in the treaty between the four Lesbian cities
of Mytilene, Methymna, Antissa, and Eresus, con-
cluded in the earlier part of the second century B.C.,
provision seems to be made for dealing by award
or agreement with any disputes which might arise
between them.'' Unfortunately the fragmentary
nature of this treaty as preserved to us renders
* p. 60. * Thuc. iv. 118. 8 : cf. §iS. ' Thuc. v. 18. 4.
* Thuc. V. 79. I. * Ibii « Ibid. § 4. ' lviii, 1L 47 ff.
F 2
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68 INTERNATIONAL ARBITRATION
certainty unattainable, and even if the differences
referred to are those between the several states and
not those between their citizens, the possibility still
remains that the passage may refer to existing
disputes which are to be settled under the terms of
this agreement Nor can we appeal with absolute
confidence even to the full and detailed treaty
between Hierapytna and Priansus,^ one clause of
which deals with ra varrepov cyytyo/xeva aSiicjfiaraj
for although on each occasion the two allied states
are to determine in common the city to which the
disputes are to be referred, yet here also the offences
contemplated may have been those of individual
citizens and not of the states as a whole,* But the
treaty between Ephesus and Sardis affords a clear
example of an arbitration clause.^ The passage in
question is so important that it may be quoted in full :
'And if either of the peoples act contrary to
any of the stipulations laid down in this treaty, the
people which is wronged may get justice before
the state chosen by lot from amongst those which
are selected jointly, the lot being cast by the state
which mediates this treaty/
It is true that in theory this clause does not cover
all possible disputes which may arise between the
two states, but only those based upon infringements,
real or alleged, of the terms of the treaty to which
the clause is appended. Yet inasmuch as the agree-
ment deals with all outstanding differences between
* LIV, U. 64 ff.
^ The mention of the av/xPoXov (1. 70) suggests this interpretation*
See Ditt. Syl/.^ 227 note 4.
» jLX, U. 73 ff. .
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DISPUTES SUBMITTED 69
the contracting states and further lays down rules
regulating their relations with a view to prevent the
recurrence of such differences in the future, it is
likely that at least the great majority of subsequent
disputes would fall within the sphere of the treaty
and so be subject to the rule regarding arbitral
settlement.
The Greeks, then, although in times of tension
and excitement they sometimes refused to acquiesce
in an appeal to arbitral settlement as prescribed in
their treaties, do not seem to have felt it necessary
to exclude any specific category of disputes from
the number of those which they regarded as suscep-
tible of peaceful decision by an arbitral tribunal.
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Ill
THE APPOINTMENT OF THE TRIBUNAL
The customary preliminary to arbitration in an
international dispute is the conclusion of an agree-
ment (compromzssum) between the two states in-
volved that they will, upon certain stipulated con-
ditions, invite and accept the decision of some
external state or individual. Apart from this
compact no arbitration is possible, and Greek history
affords numerous instances of one state refusing to
submit to arbitral decision its differences with an-
other and so effectively blocking the road to this
peaceful solution of the difficulty. The Spartans,
according to Pausanias' account,^ vouchsafed no
answer to the offer made by the Messenians to
submit to arbitration the feud which issued in the
First Messenian War, and in 420 they treated with
the same silent contempt the Argive proposal to
settle the disputed question of the possession of the
Cynuria by reference to some state or individual.^
Several other examples of a similar nature are
recorded about this same period. The Corinthians
rejected the Corcjo^ean offer to settle by arbitra-
tion the question of the rights of both states over
Epidamnus^ in 435, while Pericles, addressing the
Athenians at a time when the Peloponnesian War was
seen to be inevitable, blamed the Spartans because,
* Paus. IV. s, 7. * Thuc. v. 41. 2 : of. 59. 5. ' Thuc. i. 28.
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APPOINTMENT OF THE TRIBUNAL 71
though it was stipulated in the Thirty Years' Peace
that differences between the two powers should be
settled by appeal to arbitration, 'they have never
themselves asked it, nor do they accept it when we
make the proposal, but are eager to settle by war
rather than by words the charges against us/ ^
Such examples, however, seem to have been ex-
ceptional ; under ordinary circumstances Greek feel-
ing appears to have demanded that a state should
prove its sincerity and its confidence in the justice
of its claims by accepting the proposed arbitration,
even in differences which had previously been settled
in the same way, either once or even repeatedly.
When the principle had been accepted by both sides,
negotiation normally led to a speedy determination
of the precise conditions.
But the agreement between the two disputants
was not always brought about by the spontaneous
action of one state in proposing, and the readiness of
the other to accept, this solution. Sometimes it was
the result of mediation on the part of a third state
or of compulsion exercised by some superior power.
Of friendly intervention our sources, both literary
and epigraphical, preserve numerous illustrations.
The alliance of Plataea with Athens in 519 b.c.
was followed by a Theban attack on the territory of
the former ; the Athenians went to the aid of their
allies and a battle was imminent, when the Corinthians
intervened and, being accepted by both sides as ar-
bitrators, determined the frontier between Thebes
^ Thuc. i. 140. For later instances see Diod. xiiL 43, 6;
Paus. iii. 9, 1 1 ; Hegesippus, [Dem.] vii. 7, 36 ; Aeschines iii. 83 ;
Philippi Epistula^ [Dem.] xii. 11, 15, 17.
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72 JNTERNATIONAL ARBITRATION
and Pktaea and ordered the Thebans to grant full
autonomy to those Boeotian communities which de-
sired to hold aloof from the Boeotian Confederation
under Theban hegemony.^ Herodotus' language in
his account of this episode leaves no doubt that he
conceived of this as a true case of arbitration, but
some events are more difficult to interpret. There
is, for example, a well-known story of the interven-
tion of Corinth and Corcyra in favour of the Syra-
cusans, who had been worsted in battle by Hippo-
crates of Gela, and of the peace which was won by
the Syracusan cession of Camarina,^ while a yet more
famous tradition tells of Simonides' intervention to
bring about peace between Hiero of Syracuse and
Thero of Acragas.' In both these cases it is best
to see examples of mediation pure and simple, with no
subsequent arbitration. We shall probably be right
in taking the same view of the peace concluded be-
tween Demetrius Poliorcetes and the Rhodians in 304
B. c. Diodorus says that during the siege of Rhodes
* envoys came to Demetrius from the Athenians and
from the other Greek states, over fifty in number and
all asking to be allowed to bring about an understand-
ing between the king and the Rhodians : but they
were utterly unable to come to terms. . . . Now at
that time the Confederation of the Aetolians sent
•envoys to bring about a settlement and the Rhodians
made an agreement with Demetrius on these terms.' *
* Hdt. vi, 108.
* Hdt. vii. 154. Macan maintains that this may well have
been a true arbitration.
' Schol. ad Find, Olymp, ii. 29.
^ Diod. XX. 98 f. Plut Dtm, 22 speaks of the Athenians as
bringing about the agreement.
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APPOINTMENT OF THE TRIBUNAL 73
B^rard claims this as an instance of international
arbitration, but there is no cogent evidence for this
supposition and the envoys came not as arbitrators
but as mediators. They could and did suggest the
terms of the treaty, but they were not empowered
to issue a binding award. Yet Greek inscriptfons
have preserved the memory of several occasions on
which the mediation of a neutral state resulted in an
agreement to submit the dispute to arbitral, settle-
ment. Pergamum sends an. embassy to Pitane and
to Mytilene to bring to these states a decree of the
Pergamene people urging upon them the peaceful
settlement of their differences,^ and, when both re-
turn a favourable reply, an agreement is easily con-
cluded between them formulating the conditions of
the arbitration. A few years later, when there are
numerous questions at issue between Latos and Olus,
Cnossian envoys were sent to the two cities on two
separate occasions to ask that the arbitration
should be entrusted to Cnossus.^ A third instance
is that of Sardis and Ephesus ; ^ a treaty terminat-
ing all existing disputes between the two states
and providing for the settlement of f|iture difficulties
by arbitration * was concluded at the request of the
Roman proconsul of Asia, Quintus Mucins Scaevola,
who sent a delegate and a letter to each of the states
advising them to terminate their feud. The treaty
itself was ratified, thanks to the mediation of a third
state, which, though not expressly named, is un-
doubtedly Pergamum.^
^ LIX. * LH, 11 4 ff. ; LHI, 11. 1-4. ' LX.
* See above, p. 68.
* Ditt. O. G.I. 437 note 22. Other examples of mediation are
V, XXIX (?), XLix. Cf. S. G, Z>./. 5177* n. 14 ff.
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74 INTERNATIONAL ARBITRATION
In the examples we have so far considered the
intervention wa$ entirely friendly in character, and
there was no menace attached to it But there were
also cases in which one or both of the states sub-
mitting to arbitration did so not of free will but
under compulsion, threatened at least if not exercised.
Philip's letter to the Athenians, in which he urges
them to consent to an arbitral decision of the conflict-
ing claims to Halonnesus, refers to the fact that
Athens had compelled Thasos and Maronea to have
recourse to this means of settling the question of
Stryme,^ and Philip himself, after becoming master
of Hellas, * compelled both (the Spartans and the
Messenians) to setde their disputes by arbitration,
not appointing himself judge of the differences be-
tween them but setting up a common court chosen
from all the Greeks/ ^ Possibly it Was this tribunal
which delegated to the Argives the task of inquiring
into and deciding the dispute between Melos and
Cimolus,^ though it is more probable that the
appointment was made by the Council of the
Greeks (crvveSptoi/ rtav *EXXi^i/ft)v) instituted by Philip
at Corinth shortly after the battle of Chaeronea.
The Leagues of later Greek history did their best
to enforce upon their members the appeal to arbitra-
tion. Thus the Megarians decide a case between
Epidaurus and Corinth *in accordance with the
command of the Achaeans ' {Kara rov alvov rov tZv
'Axatfiv),* and, when the Corinthians refuse to accept
the verdict, it is once more under instructions from
the Achaeans that a frontier-commission is sent to
* [Dem.] xii. 17. ^ Polyb. ix. 33 : cf. Strabo, viii. 4, p. 361.
•* XLVII. * XV, 1. 4.
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APPOINTMENT OF THE TRIBUNAL 75
carry out a careful demarcation of the boundary.*
The Boeotian Confederation too intervened, probably
by way of compulsory arbitration, to setde frontier-
disputes between Lebadea and Coronea* and
between Copae and Acraephia.^ A treaty between
the Aetolians and the Acamanians, concluded shortly
after 280 b. c, provides for the delimitation of the
frontier between Stratus and Agra : if the two com-
munities can arrive at some agreement, this is to be
valid; otherwise the boundary is to be settled by
a mixed commission of twenty members, ten Aeto-
lians and ten Acarnanians, from which citizens of
the two communities most directly interested are
excluded.^ In some cases, no doubt, the arbitration
of the Roman state bore this character, but the
appeal of Greek states to the Senate seems often to
have been made on the initiative of the states them-
selves. Historians are all too prone to confuse the
power to compel and the actual exercise of com-
pulsion.
We have thus seen that the agreement of two states
to submit their dispute to arbitration may arise either
from the spontaneous action of the states themselves,
or from the intervention of some friendly power, or
from the compulsion brought to bear by some state
or confederation possessing superior force. To the
existence of such agreements we find references in
numerous texts, literary and epigraphical, for without
it the award has no validity. For example, in the
record of the Argive verdict regarding the dispute
between Melos and Cimolus we find the phrase
* XV, 1. 10. ^ XXI, 1. 3.
' XVII, 1. 3. * XXVIII, 11. 6 ff.
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76 INTERNATIONAL ARBITRATION
6fJLo\oyrj<rdvTO)p MaXtcoi/ kol Ki/uuuXtoii^ c/ifievh^ St Ka
StKoo-cratci/ rot ' A/yycibt TTcpt tw voATtav} Frequently
this reference takes a less explicit form in such
expressions as [d/ui<^or]€pfit>i^ hnrp^ainoiv\^ kKaripoiv
0d<6vroiVi^ hrirpe^av (Sticas),^ hrerpwrrovro,^ avrS^v
hn.\(apnrja-dvTOiv cf o/ioXoytoVy^ {byuokxrfTja-dvTOiv cJicaTe-
poiv T{mv TToXccoi/],^ iKarepoiv €v8ok[owtcji/] ® or KaOori
avviOevTo irpos aXXi^Xovs.® In some cases, however,
the information afforded by the inscriptions is more
precise and detailed. This is especially true of the
agreements between Latos and Olus,^® passed at
common meetings of the citizens of the two states,"
to refer all their disputes to Cnossian arbitration.
The Cnossians are bound to pronounce judgement
within six months of a specified day in one case ^^
(a period afterwards extended by common consent to
eighteen months),^^ and in the other within ten
months ;^* they are also to take steps to record their
award upon the five stelae which bear the inscription
of the preliminary agreement, in two Cnossian sanc-
tuaries, in those at Latos and Olus, and in the Apollo-
temple at Delos.^'^ The award is to have absolute
and unconditional validity for all time, and the
' XLvii, 11. 5 ff. ' II, 1. 31 ; Hdt. vi. io8. ' lxiv, 1. 10 f.
* Polyb. ii. 39. 9 j Strabo, viii. 7, p. 384 ; [Plut] Proverb, 23.
' Hdt. V. 95. • XXXV, 1. 2 f.
' XII A, 1. 2, as restored by Frankel ; but the construction cLd
sensum is disquieting.
« XL, 1. 28.
* Lix, 1. 118. Cf. also XVIII, 1. 3 f. ; lxxxi, 1. 3 ; lxxxii, 1. 4f.;
Strabo, xiii. 38, p. 600 ; Plut. Quaesf. Graec. 30.
" Lii, Liii. " Lii, 1. 9 ; Liii, L 4 f. ** Liii, 1. 20.
" LIII, 11. 56 fr. " Lii,l. II f.
" LII, 11. 15 ff. ; LIII, 11. II ff., 23 ff.
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APPOINTMENT OF THE TRIBUNAL 77
disputes which it settles are never to be renewed in any
way or under any pretext whatsoever ; ^ guarantees
are to be provided by both cities for the due and
proper fulfilment of the award, and any infraction of
it is to be punished by a fine paid by the delinquent
state to its rivaK^ Finally, any subsequent emenda-
tion of or addition to the agreement shall be valid if
it receives the sanction of Latos, Olus, and Cnossus.^
A second extant example of an agreement of this
nature is that between Phthiotic Thebes and Halus.*
It is signed at the outset by a number of representa-
tives, official and private; of the contracting states;*
then the document contains a statement of the
dispute to be decided, the name of the arbitrator
selected by common consent, and a stipulation that
his award shall be absolutely binding. The date of
the arbitration, the steps to be taken to preserve
a permanent and public record of the agreement
and of the subsequent award, the fine to be imposed
on either state which refuses to accept or to adhere
to the decision, and the names of the two fcvoSoxot
appointed by each state complete the document.®
In a third instance the agreement, which here
deals not with actual disputes of the present but with
contingent difficulties of the future, forms part of
a general treaty in which existing differences are
ended and regulations laid down regarding the future
relations of the two states, Sardis and Ephesus, and
* LII, 11. 13 fr. ; LIII, 11. 28 ff., 38. .
^ LIII, 11. 32 fF. • LIIl, 1. 40 f. .* XL, 11. 1-23.
" 11. i-io. Apparently Thebes is represented by three tagi,
an exrtagus and eighteen citizens, Halus by twa tagi and seven
citizens.
• II. 12-23. *
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78 INTERNATIONAL ARBITRATION
of their citizens. The record deserves careful exam*
ination, presenting as it does a remarkable variation
from the normal procedure followed in the choice
of an arbitrating state. The passage in the treaty
dealing with this subject runs as follows :*
* And if either of the peoples act contrary to
any of the stipulations laid down in this treaty,
the people which is wronged may get justice
before the state chosen by lot from amongst
those which are selected jointly, the lot being
cast by the state which mediates this treaty.*
The people which professes to be wronged shall
announce the charge by means of an embassy
to the people accused, and those who are ap*
pointed on either side shall meet for the trisilj
within thirty days from the time at which the
accusers hand in the decree, before the mediat-
ing people.* These shall appoint by lot, within
five further days, the people which is to arbitrate.
Within sixty further days after the lot has been
cast they shall come to the people thus appointed
and shall complete the trial, bringing from their
own states documents addressed to the state
chosen by lot asking it to grant the court, and
the award they shall carry out forthwith. But if
any one fail to appear either before the mediating
people or before the allotted state, judgement
shall be given for him who does appear. This
agreement shall remain in force for the Sardians
and Ephesians for all time, and anything else
which the two states may decide as being more
suitable.'
The treaty then contains stipulations r^^arding its
* Lx, lU 73 ff. The opening lines have already been quoted
(p. 68) in a different connexion.
* i. e., most probably, Pergamum : see above, p. 73 note 5.
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APPOINTMENT OF THE TRIBUNAL 79
publication at Ephesus, Sardis, and Pergamum, and
the date at which it comes into force,^ concluding
with the named of the three Sardians and seven
Ephesians who carried out the negotiations.^
To the detailed information which may be gained
from these three agreements must be added a certain
number of incidental references found in other arbi-
tration-records. The character and size of the court
were sometimes stipulated in the preliminary agree-
ment,* though ordinarily the state chosen as arbiter
was allowed a free hand in the appointment of the
tribunal which was to represent it. The Magnesians
in their report mention that they were elected
iu rfji, v^ eKarepoiv yevrjdeia^i o/xoXoyeot ifixipaiJ'
Still more explicit are the terms upon which the
Pitanaeans and Mytilenaeans agree to submit their
dispute to a Pergamene tribunal.* The arbitrators
must visit in person the territory in dispute, the
hearing of the evidence must begin by a specified date
and is to be careful and detailed, the award is to be
made on oath and copies of it are to be handed in
writing to each state. The award is to be absolutely
binding and is to be recorded, together with any
agreements which may be brought about by media-
tion, upon a stone stele. Finally, the demarcation
of the frontier is to be made plain and unmistakable
and the arbitrators are to settle not only the dispute
regarding the boundary but all outstanding differ-
ences between the two cities involved.
The agreement, then, concluded by the two
* Lx, 11. 85 ff. * 11. 92-96. » xLv A, 1. 13 f.
' LVi, 1. 25 f. Cf. 1, 1. 46 f. ^ Lix, 11. 25 ff., 6 9 ff.
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8o INTERNATIONAL ARBITRATION
disputants normally deals with the following points :
(i) the question at issue, (2) the choice of the
arbitrator, and (3) the validity and finality of his
award. It may further contain stipulations relating
to (4) the time at which, or within which, the inquiry
is to take place, (5) the size and character of the
. tribunal, (6) the way in which it is to arrive at,
pronounce and record its verdict, {7) the place, time,
; and manner of publication, and (8) the penalties
attending its contravention. Questions not dealt
with in the agreement were settled either by the
arbitrator or by the common consent of the delegates
of the two litigant states. Thus the length of the
speeches delivered by the Spartan and Messenian
advocates before the Milesian court was restricted
KaOoTL Koi avTol cvSoic7j(rai/,^ the number of members
composing the Eretrian tribunal is determined by
the common consent of the representatives of Paros
and Naxos,* while in another case the form in which
the award is recorded is described in the words :
KaOm oi 7r/)oSticcoi^€9 virkp eKarepav tov ttoXlcjv
<rvfi<l>0}V0L yevo/ievoL iKikevaap KaraypdijfaL to Kpiiia.^
One further point demands attention in this
connexion. In a number of cases a dispute is referred
to arbitration in a strikingly vague and general way.
To quote but a single example, Maco of Larisa is
asked to decide
[irepl Ta9 aft<^tX]cyo/ACi/a9 x^P^^ avraU troff cavra?
Tat9 TToXco-t.*
* 1, 1. 59. ' XLV A, 1, 13 f. ' XXX A, 11. 5 ff.
* XL, 1. 10 f. Cf. Lxii, 11. yfr.
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APPOINTMENT OF THE TRIBUNAL 8i
In such cases (and they form, so far as we can judge,
the majority) the arbitrator is called upon to give an
equitable decision in a dispute, the details of which
will be laid before him by the delegates of the
interested states. Sometimes the reference is far
wider and more comprehensive, including a series of
accusations,^ or even all the disputes which exist
between the two states,* while there are arbitration
treaties, as we have already seen, providing for the
settlement by this means of most or all contingent
disputes of whatever nature.^ In several instances,
however, the question referred to the arbitrators is of
a different character and deals merely with a matter
of fact, not with one of law or of equity. The Senate,
whether of its own motion or at the request of one of
the states concerned, has taken cognizance of the
dispute, has stated the law and has defined precisely
the point at issue. Then, instead of inquiring into
the facts of the case, it has deputed some other state
to do this and to apply the Senatorial decision to the
particular case. Three examples will illustrate this
mode of procedure. The Spartans and Messenians
referred their claims to the possession of the ager
Dentheliates to the Senate, which passed a resolution
[6w6]\T€poi ravTrjy rfiv \(apav KaTei')^ov ore Acu-
Kt05]j Mo/x,/xt09 v7raro9 ^ avOvnaro^ [iv eKeCvrfi rfji
errapWx^iaL eyivero, oira)^ oCrot oviicws icar^cwa-tv],*
and delegated to the Milesian Sijfios the task of
determining the question of fact. The Milesian
^ e.g. Lxvi, 11 55 ff.
* Liii, 11 9 ff. (see p. 63); Liv, 11. 57 fT.; ux, 11. 35 ff., 77 ff.
»pp. 65ff *i, ll52ff,
1«»6 G
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82 INTERNATIONAL ARBITRATION
record therefore states that ' the case was brought
forward in accordance with the letter of the aforesaid
praetor and with the Senatus consultum \^ and the
award takes the form, not of a declaration that in
equity the disputed territory belongs to the Messen-
ians, but of the statement that * the territory was in
the possession of the Messenians when Lucius
Mummius as consul or proconsul was in that province,
and they therefore must hold it'.^ Similarly the
Magnesians try the dispute between Itanus and
Hierapytna * in accordance with the decree passed by
the Senate and the letter sent by L. Calpurnius L. f.
Piso, the consul \^ and a passage is quoted from the
SC. directing that, * as each held this land and the
island, which is the subject of dispute, on the day
before the outbreak of the war which occasioned
the dispatch of Servius Sulpicius and that body of
envoys to Crete, so the arbitrators should decide
that diey should have, hold and reap the fruits of it'.*
The Mylasians also have only a question of fact and
not one of right to determine in a controversy
between Magnesia and Priene regarding their
territorial claims : in the SC. it is ordered that the
arbitral court 'shall award the land to that one
of the two states which it discovers to have been in
possession of the land when it entered the friendship
of the Roman people, and shall determine the frontier
accordingly '.*
When the basis of arbitration had been thus found
and formulated, the next step was to approach the
' 11. 49-5 !• ' 11. 63-66. • LVI, L 10 f.
* 11. 5 iff. * LXVI, 11, 53 ff.
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APPOINTMENT OF THE TRIBUNAL 83
proposed arbitrator, whether state or individual, with
a request to undertake the task of decision upon the
conditions laid down in the agreement. An embassy
was therefore sent, comprising envoys of both the
states, to bear a copy of the agreement to the selected
arbitrator and to ask for a favourable response.^ If
the trial involved the dispatch of a body of judges
from their native city, the embassy was sometimes
accompanied by a Swcaorayoiyos,^ whose function was
to accompany the arbitrators on their journey and to
make all the necessary arrangements for their safety
and comfort. Arrived at their destination, the
members of the court were lodged at the public
expense, and special fcwSoxot were — in some caseiSj
at least — appointed to entertain them.^ The receipt
excavations at Sparta have brought to light four
roof-tiles bearing the inscription *
KaraXv/uuz t<ov 'Pcw-
fiaicjv Kal hiKdarav
in characters of the second century B.C., proving that
there at least a special building * was erected for the
lodgement of Romans who visited the state in a
public capacity and also of judges from other states,
whether summoned to try suits between Spartan and
Spartan or acting as arbitrators in international
* XVIII, 11. 8 ff. ; LXii, 1. II. Cf. XXII, 11. 5 ff.; xlv A, 11. 9 ff. ;
LXVI, 1. 5.
* xviii, 1. 8. Cf. Ditt. O. G. I. 487, 1. 6 ; Le Bas-Waddington
358 a, 1. 6.
' XL, 1. 22 f. Cf. the SuccuTTo^vXaiccs at M^esia, lxvi, 1. 23.
* B. S. A. xiii. 39 ff.
' The date of this hostel is probably a,bout i8o,b.c. : see
E. Ziebarth, Rhtin. Mus. Ixiv. 335 f.
G2
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84 INTERNATIONAL ARBITRATION
disputes to which Sparta was a party. In one
interesting example we find the arbitral court
receiving from the state in favour of which it had
given its award not merely the honours and privileges
customarily granted, but also a safe-conduct on its
homeward journey so far as was deemed advisable,
in order to prevent any possibility of unpleasantness
or molestation on the part of the state which had
been worsted in the trial.^
It was, of course, within the power of the city or
the individual to tefuse the position of arbiter, and it
may well be that there were occasions on which this
step was actually taken. It is true that no mention
of any such refusal is found in our sources,' but
it must constandy be remembered that upon a
question of this kind the argument from silence
has very small weight. For the Greeks did not
invariably or even normally commit their public
records to stone, but only in those cases in which the
desire was felt for special publicity combined with
permanence,* and such a desire could rarely if ever
be present regarding a frustrated attempt to secure
a given person or city as arbitrator. There is,
indeed, one inscription which tells of the refusal of
a state to undertake the whole task requested of it.
The stone was discovered in Carpathus, but it is
uncertain whether the Carpathians were the arbitra-
* xxn, 1. 32 f, Cf. XXIII, 1. 14; LG, xii. 5. 722, 11. i6jQr.;
R.k.G, X. p. 284, 1. 19.
' The reAisal of Scipio Aemilianus in 151 b.c. to arbitrate
between the Macedonian states (Polyb. xxxv. 4, 11) falls outside
the scope of our present inquiry*
' For this whole question see A. Wilhelm's masterly essay,
Beiifiige zurgriech, Inschrtftenkunde^ 229 ff.
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APPOINTMENT OF THE TRIBUNAL 85
tors or one of the contending parties. The extant
portion of the text refers to a * request from each of
the two states that we should mediate and draw up
a code of law ', but goes on to record that the state
refused this invitation and contented itself with acting
as mediator and bringing about an agreement
between the cities involved in the dispute.^ In fact,
the inscription does not make it plain that the
arbitral function was exercised at all on this occasion.
In other records mention is made of the motives
which prompted the acceptance of the position. The
Magnesian people undertook the task at the request
of the Romans
' in pursuance of its policy of absolute obedi-
ence to the written requests of the Romans, the
common benefactors, and in memory of the fair
and glorious deeds wrought by itself from the
beginning throughout the generations to all Cre-
tans, deeds which are recorded both by oracles
of god 2 and by the consciousness of all man-
kind/^
The Larisaeans sent judges to Acraephia and its
neighbour-states
* in memory of the kinship which has existed
from the beginning between them and the Acrae-
phians and all Boeotians ',*
while the Mylasian acceptance of the request made
by Rome and by the contending cities, Magnesia
and Priene, to act as arbitrators between them is
described as an
^ Lxxxii. In xxxix b, U. 23 ff., as restored by Arvanitopoullos,
the arbitrators refuse, for some unknown reason, to give a decision.
' Cf. /. V. Magnesia, 17, 11 16 ff., 28 ff., 38 ff., 46 ff.
' LVi, 11. 22 ff. * xviii, 1. I of.
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86 INTERNATIONAL ARBITRATION
• action in aiccordance with their characteristic
generosity and their desire to follow the reso-
lutions adopted by the Romans and ourselves
(i.e. the Magnesians) and the letter addressed to
them'.^
The fact is that the position of arbitrator was one
of considerable honour and influence, so that no state
or individual would lightly refuse the distinction
when offered. This is borne out by the tone of the
SC. under the terms of which the Mylasians were
appointed. The Senate there directs the praetor,
M. Aemilius, to give to Priene and Magnesia as
arbitrator
* any free people (S^ftos) agreed upon by them ;
but if no agreement can be reached between
them, M. Aemilius M. f. the praetor shall appoint
a free people to deal with the case, as may seem
good to him on considerations of public policy
and his private belief/ ^
From the phrases here employed we infer that,
though it might be hard to secure the consent of
both the litigant states to a nomination as arbitrator,
the Senate anticipated no difficulty in inducing any
free community to agree to act in that capacity.
What factors, then, determined the choice of an
arbitrator ? In very few cases is any answer to this
question supplied by our ancient sources. The
passage quoted above from the Magnesian report
suggests that the Romans entrusted the final stage '
of the arbitration between two Cretan cities to the
Magnesians because, though they were far enough
removed from the island to be free from local jealousy
* Lxvi, 11. 6 ff. ' Lxvi, 11. 47 ff. * See p. 8i f.
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APPOINTMENT OF THE TRIBUNAL 87
and prejudice, they were united to Crete by a long and
honourable record,^ which was none the less strong
a bond because perhaps it could not bear the test of
a rigorous historical criticism. * Kinship ' is also the
alleged reason why Acraephia and the states near it
appealed to Larisa to arbitrate between them,* and
'kinship and friendship and a kindly disposition
towards our state from the beginning ' are mentioned
to account for the intervention of Pergamum in
a struggle of Pitane and the readiness of its citizens
to entrust the settlement to a Pergamene court.* But
the most explicit statement on this point which has
come down to us from ancient times is to be found in
Polybius' account of the immediate sequel of the
battle of Leuctra :
*The Thebans and Lacedaemonians referred
the matters in dispute to the arbitration of the
Achaeans, and to them alone among the Greeks,
not in consideration of their power, for at that
time they ranked almost lowest of the Greeks
in that respect, but rather of their good faith
and their moral excellence in general. For beyond
question this is the opinion of them which was
held at that time by the whole world.'*
This statement, made by one who was himself
a patriotic Achaean, has been called in question by
Grote ^ and others, while the continuance of the war
between Thebes and Sparta proves that arbitration,
if resorted to, was ineffectual. But B^rard* has
^ Cf. Ditt. Syli} 929, note 13, and Wilhelm's restoration of xlix
A, 1. 22 f. in Stzb. Wien, clxv, 6, p. 54. * xvni, 1. 7.
' Lix, 1. 2 f. Cf. 11. II, 16, 21, 23, 60 f., 97 f. ] Paus. iv. 5. 2.
* Polyb. ii. 39. 9. Cf. J. P. Mahaffy, Greek Life and Thought,
p. 583. ' Pt. ii, ch. 78. • B^rard, Arb. p. 29.
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88 INTERNATIONAL ARBITRATION
strongly supported the statement made by Strabo/
who omits all reference to the Spartans and merely
says that
hrdrpe^ap ©i^jSalbt tovto^s rfiv hiairap,
a phrase which may be interpreted as meaning that
the Thebans ofiered to submit the matter to Achaean
arbitration, but the proposal was declined by the
Spartans.*
There are several instances known to us in which
a friendly state which intervened was itself accepted
as arbitrator,^ though this step was not always taken ;
an example to the contrary is the choice of Ptolemy
Philopator as arbitrator by Gortyn and Cnossus,
when the instigation to a peaceful settlement had
come from the Magnesians, who sent two envoys to
the belligerent states urging them to conclude peace.*
A cognate, though not precisely similar, example is
that in which the Sardians and Ephesians agree that
^ in the future differences between their two states
sliall be submitted to the arbitration of a third state
to be chosen by lot from a select list by Pergamum,
which had mediated the settlement of past disputes.®
But with the exception of the cases just discussed,
our sources tell us nothing, or next to nothing, of the
motives which in each several case led to the choice
of the arbitrator employed. The search after motives
' viii. 7, p. 384.
' The fact that Strabo is clearly following Polybius as his
source in this passage and his use of the aorist instead of the
imperfect seem to me to militate against the interpretation
advocated by Bdrard, which may, nevertheless, be true though
lacking Strabo's support.
' See above, pp. 71 ff. * xlix. ^ lx, U. 73 ff.
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APPOINTMENT OF THE TRIBUNAL 89
is always a perilous undertaking, and in the majority
of instances we lack that detailed knowledge of
contemporary history which alone could give a
firm basis for an examination and criticism of the
motives at work. In spite, however, of this confession
of ignorance, we may note one or two salient features
of the cases of which some record has survived.
During the century which followed the battle of
Chaeronea, disputes between Greek states were
frequently referred for arbitration to Philip or
Alexander or one of the Diadochi. Philip, indeed,
though determined to do all in his power to allay
the feuds of his Hellenic subjects, in order to make
use of them in his wider and more ambitious schemes
of empire, apparently hesitated to assume openly the
r6le of arbitrator, and Polybius tells us that, though
in the common interest he compelled the Spartans
and Messenians to settle their differences by arbitra-
tion, ' he did not appoint himself as judge in the
questions at issue, but set up a common tribunal
taken from all the Greeks.* ^ To this he delegated
the task of deciding, and thus the award is referred
to as Philip's by the Spartans and Messenians
before the Roman Senate.^ Alexander and his
successors, however, settled such questions in person,
as, for example, the long-standing feud between
Samos and Priene, which was submitted successively
to Alexander,^ Philip Arrhidaeus,* Antigonus,*
Lysimachus,* Antiochus Theos,' and Antiochus the
* Polyb. ix. 33. ' Tac. Ann. iv. 43.
' Lxii, 1. 146 (reference doubtful). ^ 1- i37 (doubtful).
• 1. 141 (doubtful). « LXi, LXII, 11. 125 flF. ' LXII, 11. 132 ff.
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90 INTERNATIONAL ARBITRATION
general of Ptolemy III Euergetes.^ Similarly
Antigonus Gonatas was invoked by the Spartans and
Messenians,^ and Ptolemy Philopator was appointed
arbitrator in the war between Gortyn and Cnossus,^
but the attempt of iPyrrhus of Epirus to induce the
Romans to accept him as arbitrator between them-
selves and the Italiots with whom they were at war
proved fruitless.* But this practice of appealing to
a crowned head was not confined to the Hellenistic
period. At the close of the seventh century B.C. the
Athenians and the Mytilenaeans, after an indecisive
struggle for the possession of Sigeum in the Troad,
agreed to submit the dispute to Periander, tyrant of
Corinth, whose award was, at least temporarily,
accepted by both parties,^ and Pausanias, son of
Cleombrotus and regent of Sparta, is referred to by
Plutarch,* in a passage of which the historical
accuracy is at least open to grave doubt, as hearing
the case between Delos and Athens.^ The dispute
between Melitea and Narthacium was settled, at
least temporarily, by a certain Medeus,® who has
usually been identified with the dynast of Larisa who
was at war with Lycophronof Pherae about 385 b.c. ; ^
but the identity, though not unlikely, cannot be
proved, and it has been suggested ^® that this Medeus
was the friend of Alexander the Great and subse-
^ 11. 153 ff. ' Tac. Ann. iv. 43. ' xlix, l.
* Plut. Pyrrh, 16.
' Hdt. V. 95; Strabo, xiii. 38, p. 600; Diog. Laert. i. 74. Cf.
Arist. Rhet i. 15. 13, p. 1375 b.
* Apophth, Lac. 230.
' Cf. Bdrard, Arb, p. 26; Sonne, Arb. p. 27 f.
* XXXIV, 1. 27. » Diod. xiv. 82.
'^^ Ditt. Syll} 307 note 16. I still incline to the other view.
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APPOINTMENT OF THE TRIBUNAL 91
quently of Antigonus and Demetrius Poliorcetes,
whose name is familiar to us from literature,^
from a list of Delphian vctoTrotot,* and from an
Athenian decree passed in his honour.^ Nor did the
appeal to the individual arbitrator of high rank cease
with the merging of Hellenistic Greece into the
Roman Empire. Nothing is said of the precise form
in which L. Mummius, Julius Caesar, Marcus
Antonius,and Atidius Geminus dealt with the dispute
between Sparta and Messenia,* but the probability
is that they did not do so in virtue of the irresistible
power of the Roman legions but in response to an
appeal from the states themselves, and that these
are thus true examples of arbitration, although the
arbitrators held high rank and office in the Roman
Empire.^
It has sometimes been argued that this selection
of crowned heads or powerful officials as arbitrators
is but one of the manifestations of that fulsome and
cringing flattery of those in power which defaces the
records of later Greek history. To deny this in
toto would not be easy in face of the picture of
Hellenistic Greece presented by the historians and
by inscriptions, but to accept it as the sole, or even
as the chief, explanation betrays shallowness of
judgement. For Alexander, or one of the Diadochi,
possessed certain advantages as arbitrator which
could not be combined in one of humbler station,
* Arrian, vii. 24. 4; Diod. xx. 50. 3; Plut. Dem, 19;
C. Miiller, Scripty rerum Alex. Magni^ pp. 127 ff., etc.
« Ditt. Syll} 140, 1. 138. » Ditt. Syll} 173.
* Tac. Ann. iv. 43.
* For Mummius' decision see Ditt. SyU} 3x4 note i.
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92 INTERNATIONAL ARBITRATION
and these more than outweigh the contention that
there is no more intrinsic probability that a king
will judge wisely than a state or a private citizen.
For, in the first place, the very fact that he was
a king, all of whose actions were carefully watched
and recorded, might be expected to make him feel
keenly the sense of responsibility, while, at the same
time, being sole judge, he could not shift the odium
arising from an unjust award to the shoulders of
colleagues. Secondly, he was deeply interested in
the satisfactory and lasting settlement of the dispute,
for it affected closely the peace and tranquillity of
his empire, and yet his interest was not of such
a nature as to lead him into a prejudiced judgement ;
Alexander's realm, for example, included within it
the territories of Samos and Priene, and its size and
wealth were wholly unaffected by the precise position
of the frontier-line which divided them. And further,
his very imperial position gave his awards the
prestige they would otherwise have lacked, and
made it possible to enforce their observance, thus
supplying a positive sanction which otherwise^ was
lacking to the arbitral judgement.
But the individuals to whom appeal was thus
made were not in all cases kings, tyrants, or high
officials. Themistocles is said to have been invited
to adjudicate between Corinth and Corcyra,^ no
doubt in virtue of his great fame for cleverness and
sagacity. Pyttalus, a famous athlete, appears in
Pausanias' narrative as settling a dispute between
Arcadians and Eleans,^ and an Athenian, Bunas or
Bulias, is mentioned in the explanation of an Alex-
* Plut. Them. 24. * Paus. vi. 16. 8.
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APPOINTMENT OF THE TRIBUNAL 93
andrian proverb by the pseudo-Plutarch as arbi-
trating between Eleans and Callionaei.^ These
examples, it is true, are but poorly attested, and in
each of them mediation and not arbitration may be
the historical basis of the narrative.^ The Medeus
who arbitrated between Melitea and Narthacium
may, as has been pointed out above, be either prince
or private individual, while of the work and position
of Stratonax of ApoUonia* and Lanthes of Assus* we
know too little to be able to speak with any con-
fidence. But there is one case, clear and undoubted,
of appeal to a private citizen : Phthiotic Thebes and
Halus submit their frontier-dispute to the decision
not of the Larisaean state but of a prominent man
of Larisa, Maco the son of Omphalion,* who is
mentioned in two other Thessalian inscriptions of
the period.® In such cases we have no reason to
doubt that the arbitrator selected was entrusted
with his responsible and sometimes onerous task
merely because of the name he had won for skill
and fairness, and the confidence to which such
a reputation gave rise.
But if the appeal to a single arbitrator is frequent
^ [Plut] Proverb, Alex, 23. See Sonne, Arb, vii, p. 11.
KoXXuDvoiovs may be a corruption for KvXXi;v(uov9 or for KaXv8o>-
VtOV9.
* So also with the alleged arbitration of Pantarces between the
Eleans and the Achaeans (Paus. vi. 15. 2).
' LXXVII.
* Lxxii. B^rard {^Arb, p. 93) speaks confidently of Lanthes
(whom he wrongly calls Laanthes, ibid. p. 71) as sole judge
between Mylasa and Alabanda: but the evidence is quite
insufficient.
* XL. • /. G, ix. 2. 215 (Thaumaci), 578 (Larisa).
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94 INTERNATIONAL ARBITRATION
in Greek history, the appeal to a council or a state
is still more common. There is an interesting story
recorded by Pausanias that, just before the outbreak
of their first war with Sparta, the Messenians offered
to submit the points in dispute to the arbitration
either of ' the Argives in the Amphictiony ' or of the
Athenian Areopagus/ The historical difficulties of
this passage,^ however, make the authenticity of the
account doubtful, and in any case the proposal, if it
was ever made, fell to the ground. The Delphian
Amphictiones tried the famous case between Athens
and Delos, when Hyperides appeared as an advo-
•cate on the side of the former^ and determined, at
the request of a Roman magistrate, which of two
previous boundary-delimitations of the sacred land
of Apollo should be maintained ;* but these are the
only occasions upon which we hear of that much-
discussed gathering acting as tribunal in a suit of
this nature.^ Even more surprising is it to discover
* Paus. iv. 5. 2, 7.
* See the commentaries ad loc. of Frazer and of Hitzig and
Bliimner.
' Dem. xviii. 134; Hyperides, y>y. 67-75 (ed. Kenyon); Vit
* XXVI, Col B 1. 28-D 1. 6.
» Cf. [Plut.] ParaH. 306, 3, where the * battle of the six
hundred champions ' is said to have been fought at the command
of the Amphictiones ; but Hdt. i. 82 (cf. Paus. ii. 38. 5) knows
nothing of any Amphictionic intervention, and his authority is
decisive. Nor do we know whether the pseudo-Plutarch had the
Delphian Amphictiones in mind. In iv there is perhaps a refer-
ence to the Kotvov rSxy AoKcSoc^vtcav acting as arbitrator, but the
reading and interpretation are doubtful. The mention of the
Thessalian council in XXXIV, 1. 27 f., also depends upon a mistaken
restoration : see Ditt. Sy//.* 307 note 17.
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APPOINTMENT OF THE TRIBUNAL 95
how insignificant a part is played in our records of
Greek interstate arbitration by the Delphian oracle
or city. The Corcyraeans, involved in a feud with
Corinth regarding the rights of both states in Epi-
damnus, propose to submit the questions in dispute
to any Peloponnesian city, and add — ^apparently as
a kind of afterthought — ^that they will agree to
accept the Delphian oracle as arbitrator. ^ Apart
from this proposal, which was rejected, the oracle
makes but one appearance in the extant annals of
Greek arbitration as taking an active part, though
the central position and acknowledged supremacy
of the shrine make it a suitable place for the record
of awards.^ Clazomenae and C)ane laid before the
judgement of the Pythia the disputed question of the
ownership of Leuce and its Apollo-temple, which
lay between them but nearer to Cyme. The answer
is a characteristic one and goes far to explain the
almost entire absence of Delphi from the list of
arbitrators. No board of judges is appointed, no
inquiry is held, no witnesses are heard. The Pythia
awards the possession of Leuce to that state * which
should be the first to sacrifice at Leuce ; but each
must start out from thfeir own territory at sunrise
on the same day, which should be fixed by common
agreement'.' And we are not surprised to find in
the sequel that Clazomenae, which in consequence
^ Thuc. i. 28. Phillipson's statement (Jntemational Law and
Custom^ ii. 133) that 'the oracle at Delphi was often consulted in
the case of interstatal disputes^ and its arbitral decisions were
almost invariably accepted ' rests cm insufficient evidence. .
* xxxvi-xxxviii, XI.. Cf.xxii. » Diod. XV. i8
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96 INTERNATIONAL ARBITRATION
of this award won the coveted position, did so by
a trick.
The normal appeal of the Greek states, during
the days of Hellenic freedom and even in Hellen-
istic times, was to another Greek city. The choice,
which was made afresh each time the occasion arose,
was influenced by various considerations, amongst
which 'kinship' seems to have played an important
part As was only natural, the states selected were
usually those which had considerable standing and
prestige in the Greek world, such as Mantinea,^
Megara,^ Argos,* Corinth,* Chalcis,* Pergamum,®
Rhodes,^ Paros,® Cnossus,* or others in a similar
position ; we seldom hear of quite unimportant cities
acting in this capacity.^®- On the other hand, high
principle and friendly feeling were requisite in the
arbitrating state even more than power or wealth as
such, and we hear only twice or three times of
Sparta acting as arbiter," of Athens perhaps only
twice." Geographical considerations too seem to
have determined to some extent the choice of the
^ Plut. Arat, 25.
' XV, XX. Cf. Plut. Apophih. Lacon. 315 c. • XLVii, li.
* Hdt. vi. 108; cf. vii. 154. " xxx. • ux.
' XXII, Lvii, LXii. • Plut. Quaest. Graec, 30 ; lvii.
• LII, LIII.
'* XI, XII? (Cleonae); xxxi (Phayttus ?) ; possibly also ni, if
the Tenos there referred to is the Laconian town of that name
mentioned by Steph. £yz., as Bdrard and Raeder think, and not
the better known island state, as seem^ to me more probable.
" Plut Solon^ 10; Aelian, Var. Hist. vii. 19, &c.; Thuc. v.
31 ; xxxn (?).
'^ XIII, xiv, XXV. Possibly ife should add Plut. Dem. 22 : see
above, p. 72;f. Cf., however, Xen. Memor. iii. 5. 12.
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APPOINTMENT OF THE TRIBUNAL 97
arbitrating state as well as the size of the tribunal.^
Usually the distance of the contending states from
that which is represented by the arbitral court is no
very great one; the Megarians settle a dispute
between Corinth and Epidaurus,* Cleonae is called
in to put an end to a frontier quarrel between
Epidaurus and Hermione,^ Pergamum arbitrates
between Pitane and Mytilene,* Sardis between
Priene and Miletus.^ These examples are typical
and normal, although exceptions are not infrequent,
dictated by special circumstances, as when the
Argives arbitrate between their two colonies of
Cnossus and Tylissus in Crete,® or Magnesia is
requested to settie a dispute between two Cretan
states, with which her relations had been intimate
and of long standing^ Occasionally, in order to
obviate the possibility of a prejudiced verdict, the
trial was entrusted to several states in common and
the tribunal was composed of a number of panels :
Achaeans and Sicyonians are found acting together
in this way,® and examples are known to us in which
the court contained representatives of three,® four,^^
or even more different states.^^
The appeal was always to Greeks, with a single
exception,^^ down to the second century B.C., when
' See below, p. loi. ■ xv.
• XII, as interpreted by Wilhelm, Stzb. Wien^ clxvi, i, pp. 27 ff.
• LIX. * LXIX. • LI. ^ LVI. • XVI.
• xxxiv, 11. 55 ff. (Samos, Colophon, Magnesia) ; Plut Quaest
Graec, 30 (Samos, Paros, Erythrae).
*° Lvii (Rhodes, Delos, Paros, and another).
" Lxx (Erythrae, Chios, Clazomenae, Lebedus, Ephesus, and
at least one other).
" XXXlv, 1. 28 f. (ot ircpt nvXXov MfluccSovcs).
14W H
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98 INTERNATIONAL ARBITRATION
the Roman power began to overshadow the East
and to put down first one and then another of the
successors of Alexander. To this new power,
* barbarian ' though it was, the Greeks turned for the
settlement of their disputes, inspired by the same
motives which in the past had led them to entrust
their feuds to the arbitration of the Diadochi. But
so completely did the Roman Senate dominate the
provincial and foreign policy of the state, or rather,
so entirely did the Senate fill the horizon for those
who looked from the East towards Rome, that the
reference to Roman arbitration is always mentioned
as a reference to the Senate, and there is never any
allusion to the Roman people.
The question here arises to what extent the
delegation of arbitral authority was recognized in the
Greek world. It seems to have been expected that
an individual, whether king or magistrate or private
citizen, who accepted the position of arbiter, should
himself exercise its functions, and in nearly every
case known to us this course appears to have been
followed, though in some disputes at least Philip put
in place of himself a mixed Greek tribunal,^ possibly
delegating to it his own powers. The whole body
of Amphictiones might sit as a single arbitral court,^
but that the Roman Senate should ordinarily act as
such was out of the question ; it was too far distant
from the scene of the dispute to be able accurately
to ascertain all the facts, and its business was too
great and pressing to allow it to make a detailed
inquiry in each individual case. It therefore followed
one of two courses. Either it laid down the law of
* Polyb. ix. 33. * p. 94.
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APPOINTMENT OF THE TRIBUNAL 99
the case and del^^ated to some free community^ the
task of adjudicating on the facts and issuing an award
accordingly,^ or it dispatched envoys, singly or in
bodies,^ to decide such disputes, the verdict in each
case being subject to Senatorial ratification. These,
in their turn, seem to have claimed the right to
delegate their functions, for Pausanias tells how
Sulpicius Gallus, sent by the Senate to terminate
a frontier quarrel between Sparta and Argos,*
avTos fiev c^iciv awrf^ioxre Sticaon^s Karaar^
vat, KaXXtic/)ar€t Be andarjj^ r^9 *EX\a8o9 avBpl
aXoxTTopi hrvrpiirei rqv KpUriv,^
and his indignation is aroused, apparently, by the
arrogance of the Roman legatus and the character of
his deputy rather than by any breach of law or usage
on the part of either.
When we turn to those instances in which a whole
state is appointed as arbiter, it is plain that del^[a-
tion is imperatively necessary. Normally the arbi-
trating state was free to determine the size and
composition of the court to which its duties should
be delegated, though occasionally the envoys of a
mediating state were themselves accepted as arbitra-
tors by the contending parties. Delegation in such
cases was a practical necessity and appears to have
been an invariable rule. Just as in Athens and
* LXVI, U. 47 ff. * I, LVI, LXVL
' e.g. Polyb. xxiii. 15, xxxi. 9. 7 ; Livy xxxviii. 39.
* Paus. viL II. I. In spite of Polyb. xxxi. 9, it is not necessary
to alter the 'A^cibis of Pausanias into *kpKMnv or McyaXoiroXtrais,
as is done by B^rard {Arb. p. 13), J. G. Frazer (Pausanias^s
Description of Greue^ ad loc.), and others. See Ditt. SylL^ 304
note I. ^ Paus. vii. 11. 2.
H 2
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loo INTERNATIONAL ARBITRATION
elsewhere the law-courts represented the whole
people and no appeal was possible from their verdicts
because these were delivered in the name of the
8^fto9» so also arbitral tribunals exercise a delegated
authority which is regarded as that of tlie whole
community. Some scholars, indeed, have regarded
as an exception to this rule the award pronounced
by the Argives in the dispute between Melos and
Cimolus, the extant record of which opens with the
words ^
eKpive 6 Saft09 6 tZv ^Kpyemv.
But such a hypothesis, besides running counter to all
analogy, is wholly unnecessary. The award, arrived
at by an arbitral court, is published in the name and
with the sanction of the Argive people, just as, at
the present day, when an arbitration is entrusted to
a reigning monarch, the award will be issued in his
name though actually framed by the lawyers to whom
the inquiry and decision has been deputed. The
Messenians can thus refer to
a KpUris a yeyeirqiieva crrl rov Sdfiov tov MiK7f(riQ)v,^
although the Milesians had entrusted the trial of the
case to a court of six hundred members.^ At the
utmost we may suppose that the award was formally
ratified by the Argive Assembly, though the silence
of the later and more detailed records of arbitral
procedure make even this view improbable.
The courts appointed to represent arbitrating
states varied remarkably in size, but as a general
* XLVn, 1. 2 f. Cf. LXVII. • I, 11. 19 ff.
• 11. 47-49-
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APPOINTMENT OF THE TRIBUNAL- /6r
rule we find one of two principles foUoiVifed.*'* 'Eith^
the court is regarded as a small committee of experts,
or it consists of a large number of members repre-
senting the 'common sense' of the whole people.
The former plan involves, in addition to the other
advantages of expert decision, a minimum of expense
and difficulty when it is necessary for the members
of the court to visit disputed frontiers far from
their homes, and sometimes to examine minutely
a considerable length of actual boundary-line. The
latter plan, on the other hand, embodied the demo-
cratic principle that though for executive purposes
a small body may be most efficient, yet the fairest
decisions are those of *the many', representing the
collective intelligence of the community and cancel-
ling out individual peculiarities and idios5mcrasies.*
It does seem, although the character of our evidence
makes dogmatic assertion hazardous, that the
practical considerations of cost and transport were
important factors in determining the size of the
arbitral court. It is tfue that, if the accepted
restoration of the record of the Eretrian arbitrators
is correct, the 301 judges composing the court were
conveyed to Delos ; ^ but this at least is clear, that of
the four largest courts known to us, two ^ certainly^
and a third* probably, held their sessions in their
native cities, while of the small courts the great
majority, if not all, had to travel more or less widely
in the fulfilment of their functions.
These two principles are somewhat unfequally
* Cf. Arist. PoL iii. 1281 a 39-b 21. ^ xlv B, 1. 21.
' I, LXXV. * XLI.
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102 'INTERNATIONAL ARBITRATION
••'
''••:- ' /'• •
ftepresetited-kmongst the courts regarding which we
gain precise information from our ancient sources.
The largest is that of six hundred members, appointed
by the Milesians to try the dispute between. Sparta
and Messenia on behalf of the Roman Senate ; this
court is expressly described as * the largest permitted
by law '.^ This is followed by the Larisaean tribunal
of 334,* an Eretrian court of 301 judges,® the Cnidian
court of 204,* the Megarian of 151,* and one of loi
representing an unnamed state.^ There is a manifest
desire to appoint an odd number, in order to prevent
the contingency of an equal number of votes being
given on each side, while on the other hand that
danger was not sufficiently pressing to make an odd
number absolutely necessary in every case.
More numerous than these 'popular' courts are
small bodies of expert arbitrators. HoUeaux^ and
Perdrizet® speak of three as the normal number of
members composing an arbitral tribunal, but it would
be more correct to say that this number appears
more frequently than any other in the extant records.
Eight examples are known* of a court of this size, as
compared with six ^^ composed of five members, while
the Rhodians, invited to arbitrate between Delphi
and Amphissa, dispatched a body of nine citizens
to represent their state. ^^ Here again there is an
* I, 1. 48 f. * XLI, 1. 14 f.
' XLV A, I 13. * LXXV, IL 83 ff.
' XV, 1. 5 f. • 11, 1. 37 f.
' B. C.B. xiv. 39. « B. C. H. xxiv. 76.
•' V, XIII, XVIII, XIX, XX, XXIV, XXXV, XLIV.
" II, 11. 2 ff., XXX, XXXVIII, LIX, LXII j Plut. SolOH, lO.
" XXII, 11. II, 21 ff.
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APPOINTMENT OF THE TRIBUNAL 103
obvious attempt to avoid the possibility of an equal
division of the votes.^
Four instances remain for consideration, lying
midway between the two classes discussed. Thirty-
one Megarians are chosen to demarcate the frontier
between Corinth and Epidaurus,^ but these are
clearly regarded as being a committee of the whole
court of 151 ; they are appointed from amongst its
members, and the reduction in number is due to the
demands of practical convenience, for the delimitation
no doubt called for a considerable amount of time
and a careful examination of the frontier-line. The
court which tried the dispute between Miletus and
Myus ^ consisted of at least thirty members, but was
probably divided into a number of panels, each
giving a single vote determined by the majority of
its five members.* A boundary dispute between an
Acarnanian and an Aetolian town was settled by
a mixed commission of twenty, half of whom were
taken from each of the two leagues ; from this body,
however, all citizens of the two communities directly
interested were excluded.* Finally, a court of eighteen
* W. L. Westennann {Classical Jaumaiy iu 204) speaks of two
appearances of a court of two members. One is probably C /. G.
2152 ^, which has been shown by Wilhelm to refer to the
settlement of internal differences in Alabanda and not to arbitra-
tion between Alexandria in the Troad and some other state (*E^.
*Apx« I90I' 147 ff-) • I cannot discover the second. In /. G.
ix. 2. 1 1 06 the Sucoomu are five or, more probably, four in number
(see A. Wilhelm, Hermes^ xliv. 53 ff.) ; but the suits there referred
to are almost certainly those between citizens and not between
their respective states.
* XV, 1. 9. ' LXX.
* See below, p. 130 f. » xxviii, 11. 6-9.
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I04 INTERNATIONAL ARBITRATION
Magnesians is appointed to decide the questions at
issue between Itanus and Hierapytna.^
Of the method by which these tribunals were
appointed the inscriptions tell us but little. The
large courts, where they did not comprise all those
who were eligible,^ were sometimes, perhaps always,
chosen by the truly democratic method of the lot from
the whole citizen body. This is certainly true of the
Milesian court, which
aiiielKkTfpcjdTf CK navros rov BtJ/iov
at a plenary (Kvpia) meeting of the assembly con-
vened in the Theatre.^ How the proud Spartiates
must have winced to find this motley crowd of
Milesian democrats sitting injudgementon the dispute
between themselves and thos^ who for centuries had
been their slaves ! In the Eretrian account also the
word KXrjpovv is specifically employed of the appoint-
ment of the arbitral court,* but otherwise there is no
mention of the procedure followed in such cases.
On the other hand, we may safely take it for granted
that the small tribunals were filled by election, and
all the available evidence points in that direction.
We hear of one case in which those who were
responsible for the appointment
cjiioa[av aifyjaeo'daL ck 7rd]{v)Ta}v apixrrivBavJ^
a phrase which must refer to moral character rather
than to social position.* Usually no restriction seems
* Lvi, 11. 2-9. ' As is perhaps the case in xli.
' 1, 11. 45 ff. * XLV A, 1. 12. » II, 1. 33.
* Ditt. Sy//,^ 304 note 9. The phrase o^Spcs a^ol TrXovrCySa
KoX apurrivSa used in XXIX, 1. 9, probably refers to the arbitrators,
though B^rard {Ard, p. 94) seems to regard it as a description of
those who supported the litigant states at the trial.
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APPOINTMENT OF THE TRIBUNAL 105
to have been placed on the people's choice.
That the election was made by the people may be
regarded as certain, even apart from incidental indi-
cations of the fact, as when the Rhodian judges refer
to themselves as alpedevres wo tov Sa/mov,^ or the
Magnesian arbitrators describe themselves as iccxctpo-
Tov7)ii4voL vTTo TOV STJfiov.^ But the dcsire to make
the court fully representative of the state appears
in the composition of the Megarian court of 151,
appointed we know not how, which is made up of
fifty members of each of the Dorian tribes Hylleis
and Dymanes and fifty-one Pamphyli ; the committee
of thirty-one, which was subsequently conunissioned,
was similarly composed often Hylleis, ten Dymanes
and eleven Pamphyli.^
Of distinctions in position and powers between
members of the same court very few hints are given,
and it is probable that in most cases no such distinc-
tion existed. An inscription discovered in Corcyra,
however, calls one of a body of three arbitrators
fivdiioVf and the other two (rwSticaorrat, indicating
that one of the three was president of the court and
ranked, in dignity if not in power, above his two
colleagues.* Possibly the title veoKopos rfjs 'A/wc/i^^
T^9 A€VKo<f>pvrjv^^ appended to the name of the first
of the eighteen Magnesian judges implies that the
holder enjoyed some sort of presidency, and we may
* LXII, 1. 6.
* LVi, 1. 9. Cf. XXII, 1. 20 ; XXXV, 1. I f. ; xxxvii, 1. 5 (o^dorrcs) ;
LVI, 1. 25 (17 aljpccrts tov iuccumfpCov) ; LXVI, 1. 9 (cxccpor^SnTo-civ).
' XV, 11. 32 ff.
^ XLiv, 11. 10 ff. I have no hesitation in.following Dittenberger
(/. G.1X.1. 689) as against Wachsmuth and Blass, who hold that
the arbitrators here are only two in number.
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io6 INTERNATIONAL ARBITRATION
ask ourselves whether, in the event of an equal divi-
sion of the votes, he may perhaps have been entitled
to give a casting vote.^ The existence of a president
seems also to be implied in the description of two
boards of arbitrators as oi irepl Uvkkov MaKehove^ ^ and
TlavaavCas Bccro"aXo9 koI ol [ler avrov,^
In three records a secretary is mentioned,* and it
is probable that in most cases such an official accom-
panied the arbitral court. That they were ordinarily
debarred from voting seems almost certain ; yet the
fact that they receive precisely the same honours
as the members of the court at the hands of states
which have benefited by arbitral awards shows that
in social and civic position there is no difference
between the judges and their secretary/
* LVI, ). 3. " XXXIV, 1. 28 f. ' XXVI, Col. B, 1. 29 f.
* XVIII, XIX, XX.
* Cf. Pauly-Wissowa, Real-Encyclopadie^ s.v. ypafifiareU, vii.
1 741 if.
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IV
THE PROCEDURE OF THE TRIBUNAL
The court, constituted in the way we have described,
set about the fulfilment of its task as speedily as
possible. The Magnesian arbitrators in their report
pride themselves upon the promptness of tiieir
decision: no sooner had they been elected judges
than ' straightway .... we heard the statements of
the contending parties '.^ The alacrity of this begin-
ning was matched by the extraordinary rapidity with
which the case was heard. *We gave them', the
report continues, * not only the available time of the
day, but also the greater part of the night' So it
would seem that this complicated and important suit
was disposed of within twenty-four hours ! It must
be remembered, however, that this was the second
occasion within a very few years on which the
Magnesians were appointed as arbitrators in this
dispute,^ so that at least the outlines of the case were
probably already well known to most, if not to all, of
the judges, and also that the representatives of the
two contending states had already reached Magnesia,
and had brought with them all the witnesses and
documents to which they intended to appeal. More-
over, the precise question to be decided was formu-
lated in a Roman SC. .; ^ the arbitrators were asked
* Lvi, 11. 26 ff. " IL 9, 26, 50 f. Cf. Ditt. Syil.* 929 note 5.
■ 11. 51 ff. See above, p. 81 f.
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io8 INTERNATIONAL ARBITRATION
to settle a point not of law but of fact, and were
instructed to give their award in favour of that state
which had been in possession of the land and the
island in dispute on the eve of the Cretan war which
had led to the dispatch of Servius Sulpicius Galba and
his fellow legati to Crete. Thus the task of the
Magnesians was greatly simplified, and it is possible
that their award, although so rapidly reached, was
neither hasty nor ill-considered.
But such promptitude is quite exceptional. Ordi-
narily time had to be allowed sufficient for the collec-
tion of the evidence, for a visit of the tribunal to the
territory in dispute, if that was thought advisable,
and for the proper preparation of the case. Some-
times the actual hearing occupied several days, as
we learn from a Magnesian decree passed in honour
of the Mylasian judges who gave an award in favour
of Magnesia after devoting several days to hearing,
the evidence.^ The possibility of a long delay is
suggested by phrases which appear in several arbi-
tration decrees or treaties. Thus the agreement
under which Maco of Larisa is requested to act as
arbitrator fixes the month in which the inquiry is to
take place,^ and similarly the Roman praetor, in
directing the Mylasians to hear a case for the Senate,
determines the date on which the trial is to com-
mence and that on which the verdict must be given.^
Again, the arbitration-treaty between Latos and Olus
contains the stipulation diat judgement shall be
given within ten months,* while the second treaty at
* Lxvi, 1. lo. Cf. Lxv, 1. 7. * XL, 1. 12 f.
^ LXVI, 1. 62 f. * LH, L 12.
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PROCEDURE OF THE TRIBUNAL 109
first allows only six months/ but subsequently
extends the time by other twelve months.* Indeed,
it must sometimes have been the case that no limit
was prescribed to the period within which the award
must be given. The pseudo-Plutarch explains the
proverbial saying * Bunas judges ' by the story that
Bunas was an Athenian arbitrator who, knowing that
the states which appealed to him had pledged them-
selves to suspend hostilities until his verdict should
be pronounced, kept on postponing the delivery of
his award until he died,^ — a tale which, though it
may lack historical warrant, is at least suggestive.
The court was doubtless usually free to determine
when and how to go to work, though sometimes it
received instructions regarding these points, em-
bodied in a decree of the state which it represented.
An example of such a decree has survived,* regu-
lating the conduct of the suit brought by Cos against
Calymna, and, as it prescribes the exact day on which
the depositions of those witnesses who cannot be
present are to be taken * and the time within which
these must be sent to Cnidus,® there can be little
doubt that the initial portion of the decree, now lost,
contained a clause enacting that the trial should
begin on a stated day.
A second question which must be decided was
where the trial should take place. In territorial
disputes it was often of the utmost importance that
the arbitrators should themselves visit the area in
dispute. This was especially necessary when the
* UII, 1. 20. ' LIII, 1. 56.
' [Plut.] Proverb, 23. See Sonne, Arb. vii, p. 11. * lxxv.
» 1. 26 f. « 11. 36, 40.
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no INTERNATIONAL ARBITRATION
question related to the exact position of a frontier-
line ; in such cases the only possible substitute for
an authoritative survey, the correctness of which was
acknowledged by both the litigant states, was autopsy
on the part of the judges. When, on the other hand,
the boundary of the contested territory was plain and
indisputable, as in the case of the islets claimed by
Melos and Cimolus, or of the island of Leuce, to
which Itanus and Hierapytna laid claim, a personal
visit of the arbitrators was not imperatively called
for. Intermediate between these two classes of cases
is that in which the disputed territory is contiguous
to that of both the claimant states, but its area is well
defined and the only question at issue is which of the
contending parties is its rightful possessor. There
are, as we should expect, frequent references in
inscriptions to the inspection of disputed territories
or frontiers by the members of an arbitral court,^
usually accompanied by a mention of those with
whom they visited them. Thus the Delphian
Amphictiones prefix to their record of the boundaries
of Apollo's land a list of the delegates of the various
states interested who were present at the demarca-
tion : some of these are described as envoys
{Trpea-fievToCjj while others, who held official positions
in their states, are entitled apxovre^.^ Again, Maco
of Larisa, chosen to arbitrate between Phthiotic
Thebes and Halus, refers to himself as 'having made
a circuit of the whole territory in the company of the
* XV, U. 6, lo; XVI, 1. 14; xxxvii, 1, 10; xxxviii, 11. 9 f.,
19 f.; XL, L 26 f. ; XLiv, 1. 15 f. ; ux, 1. 28; lxh, 1. 22; Lxv,
1. 7 ; Lxvi, IL 9, 69 ; lxx, 1. 22.
* XXVI, Col. C, 11. 11-20.
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PROCEDURE OF THE TRIBUNAL iii
representatives of both states '} This, of course, is
the usual procedure, but occasionally the arbitrators
visit the territory under the guidance of the envoys
of only one of the contending states, as was the case
with the Aetolians whose award runs :
*We decided that the lands round which the
Meliteans conducted us belong to the Meliteans,'^
or with the Cassandreans, who visited the disputed
boundary with the Meliteans and Chalaeans,^ who
on this occasion made a common claim against the
Peumatii ; the same judges afterwards inspected
another frontier under the guidance of the Meliteans
and Pereans, the latter of whom were one party to
a dispute in which the former had previously
pronounced an arbitral decision.*
Usually the arbitrators had not very far to come,
and yet there were occasions when this visit to the
disputed area must have entailed no little difficulty,
especially if the court was a large one. For three
Greeks from the Adriatic coast, one from ApoUonia,
one from Dyrrhachium, and the third from Corcyra,
to visit in person the boundaries of Mondaea and
Azorus, which lay near the Macedonian frontier, the
one in Thessaly, the other in Perrhaebia, must have
been a considerable undertaking," nor can it have
been altogether easy for five judges from Cassandrea,
the older Potidaea, to visit Melitea, in Achaea
Phthiotis, and its neighbour-states.* Still more
difficult, perhaps, though the distance to be traversed
was so much smaller, was the task of showing 151
* XL, 1. 26 f. Cf. xLiv, 1. 15 f.
' xxxvn, 1. 9 f., reading [iKpwa](ji)€v, ' xxxviii, 1. 9 f.
* XXXVIII, 1. 19 f. ' XLIV. • xxxviii.
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112 INTERNATIONAL ARBITRATION
Megarian arbitrators the intricacies of the frontier-
dispute between Corinth and Epidaurus, and it is
not surprising that, when a more careful and accurate
demarcation of the boundary was demanded, the
Megarians thought it advisable to reduce the number
of the commission to thirty-one.^ Sometimes, how-
ever, no attempt was made by the arbitral court
to visit the territory the ownership of which was in
question. This was the case, so far as we can judge,
when the appeal was made to some tyrant or king,
and it was equally so when the Roman Senate was
appointed to arbitrate, though that body seems
usually tp have deputed to others the task of
ascertaining the actual facts, whether by a personal
visit or otherwise, and to have contented itself with
laying down the law of a case or confirming a
previous decision. Two instances may be noted in
which a Greek court of arbitration in a territorial
dispute failed to visit the land in question. The six
hundred Milesians gave their award between Sparta
and Messene apparently without leaving their city ; ^
in fact, the difficulty of transporting so large a
number to the ager Dentheliates on the slopes of
Mount Taygetus and of finding accommodation for
them there would have been very considerable.
Similarly the Magnesians decided the quarrel between
Itanus and Hierap3rtna in their native state,* aided
by maps and plans of the land under discussion.* It
is important to bear in mind that in both these
cases the Roman Senate had clearly formulated the
^ XV. * I. ' LVI.
* LVI, 1. 7 r 8ta Twv cirtSctKWfici'cov rnuv ^[(opojypa^tcuv thfrvvormov rjv.
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. PROCEDURE OF THE TRIBUNAL 113
question to be decided by the arbitrators,^ and that
this was one rather of history than of geography, and
so rendered a personal inspection of the ground less
imperative.
In the two cases just mentioned the whole hearing
took place in the arbitrating city. We may infer
this with certainty from the Milesian account, while
the Magnesian record is perfectly explicit : ^ after
taking the oath at the altar of Artemis Leucophryene
<l>prj7jvfjs hLrfKovaafiei^ r&v hiaifyepofiivtov.
It is interesting to compare with this account the
procedure of the Pergamene tribunal.* The state-
ments of the two contending cities were first heard,
probably either in Pitane or in Mytilene; then a
visit was paid to the territory in dispute, after which
the court adjourned to Pergamum and the concluding
stage of the trial was held there, in the temple of the
Dioscuri.* The Rhodian arbitrators, on the other
hand, followed a different course :
* having given them a hearing both at Rhodes
in the temple of Dionysus and on the territory
in dispute, to which the representatives of both
parties conducted us, and at the fortress named
Carium, and at Ephesus in the temple of
Artemis, we gave judgement according to what
we had seen . . . ' ^
With these exceptions we know of no instances in
^ I, 11. 52 ff. ; LVi, U. 51 ff. In Lxviii, 1. 127, a case is heard,
probably before an arbitral court, cV rwi dcar/xot rwt 'Epv^potW, but
here also the issue seems to have been defined by the Senate (1. 147).
' LVI, 1. 28 f. ' Lix, 11. no fF. See Ditt. O, G. I, 335 note 42-
* LIX, 11. 121 ff. ** LXII, 11. 20 ff.
l«8t I
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114 INTERNATIONAL ARBITRATION
which an arbitral court, consisting of a number of
individuals representative of a state, conducted the
hearing in its own city rather than on the disputed
land, in one of the litigant cities or on neutral ground.
The Mylasians heard the evidence of the Magnesians
and Prienians
irapaxpfifid re hrl t<ov rotroiv [koX fiera ravra iv]
rm Upck Tov 'AiroXXa>i^o$ rov iii Mvovvri,^
and there are frequent references to judges as dis-
patched {aTTocrraXivTes) by their states for purposes
of international arbitration as well as for the settle-
ment of internal difficulties in other cities.^ In many
of these instances, however, the members of the
court may have returned home before formulating
and publishing their awards.^
The time and place of the trial, then, were deter-
mined sometimes by a decree of the arbitral
community, sometimes by the states which invoked
its intervention,* sometimes by the tribunal itself, in
view of the special circumstances and requirements of
the individual case. The procedure to be followed was
regulated in the same manner, probably conforming
as closely as possible to the ordinary rules obtaining
in the civil and criminal courts, with the working of
which the arbitrators were no doubt familiar.
* Lxvi, 1. 10 f. The dispute between Aetolia and two towns
on the confines of Acamania and Epirus may have been decided
at Pagae (xxix ; see p. 2 1 f.). No. xlv raises a difficulty : A 14 if.
suggests that the court sat at Eretria, B 1. 21 (ag restored) refers
to a visit to Delos.
* Cf. XXXI, L 2f. {atrsaraXfUvoi); XVIII, 1. 12 (e^WarctXav) ;
Xni, 1. 16 f., XVIII, 1. 15 (trapayevofievot),
* See below, p. 152 f. * pp. 76 ff.
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PROCEDURE OF THE TRIBUNAL 115
The inquiry was frequently conducted, as we have
seen, in a sanctuary, and the members of the court
took an oath, as was the universal practice in Greek
courts of law. Sometimes this oath preceded the
hearing of the evidence : this was certainly the case
at Magnesia, where the tribunal reports that
trapaxpyjiia avafidm-es eirl rov ficoiwv r^s ^Kpriiii-
S09 T^? A€VK0(f>pv7jvrj^ (r^ayiaadivTOS iepetov c^iiO'
aafiev Kaff Up&Vf^
and the same custom seems to have been followed at
Cnidus 2 and in the arbitral trial between Sparta and
the Achaeans.^ But in one case * the tenor of the
nisirrative leaves no doubt that the oath was taken
after the hearing of the evidence and immediately
preceded the giving of ^the votes, and the same order
is suggested by the phrases iroijcrovTaL ttjv Kpiaiv /mc^'
opKov^ and iyrivi)(dai ras \]sij(f>ovs Kpv<l>aCo}s [leff" opKov.^
The exact formula of this oath is preserved in a
decree passed by the Cnidians : ^
* By Zeus and Lycian Apollo and Earth, I will
judge the case to which the contesting parties
have sworn in accordance with the justest
judgement, and I will not judge according to a
witness if he does not seem to be bearing true
witness ; nor have I received gifts from any one
on account of this trial, neither I myself nor
any one else, man or woman, on my behalf, in
any way or under any pretext whatsoever. If I
swear truly, may it be well with me, if falsely
the reverse/ ^
* LVI, 1. 26 f. * LXXV, 11. 2 ff. ^ II, 1. 14.
* LIX, 1. 122. ** LIX, 11. 30, 72.
* XLi, 1. 13 f. ; of. 11. 5, 20 f. XVIII, 1. 35, also refers to the oath
taken by arbitrators.
■^ LXXV, 11. 4-9.
I 2
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ii6 INTERNATIONAL ARBITRATION
Similarly the oath taken by the Delphian Amphic-
tiones before deciding a number of questions, of
which one involved international relations, is pre-
served almost entire and runs as follows :^
' Every question in the judgement relating to the
moneys and boundaries of Apollo I will decide
as is true to the best of my belief, nor will I in
any wise give false judgements for the sake of
favour or friendship or enmity ; and the sentence
passed in accordance with the judgement I will
enforce to the best of my power with all pos-
sible speed, and I will make just restoration to the
god. Nor will I receive gifts, neither I myself
nor any one else on my behalf, nor will I give aught
of the common moneys to any one nor receive
it myself. These things I will thus do. And if
I swear truly may I have many blessings, but
if I swear falsely may Themis and Pjrthian Apollo
and Leto and Artemis and Hestia and eternal
fire and all gods and goddesses take from me sal-
vation by a most dreadful doom, may they permit
me myself and my race to enjoy neither children
nor crops nor fruits nor property, and may they
cast me forth in my lifetime from the possessions
which now I have, if I shall swear falsely.'
So important was this, oath considered that the offi-
cial record, deposited at Megalopolis, of an award
between Sparta and Megalopolis contained not only
the formula of the oath, but also the names of those
Spartan envoys who were present when it was ad-
ministered to the judges.^
The two contending states were represented at the
trial by their duly accredited delegates. These were
entrusted with the task. of accompanying. the arbi-
trators on their visit, if such was necessary, to the
» XXVI, Col. B 11. 10-16. « II, 1. 38.
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PROCEDURE OF THE TRIBUNAL 117
disputed territory, bringing before the court all the
evidence in favour of their side, and pleading their
case as effectively as possible.^ In almost every in-
stance these would naturally be citizens of the state
they represented, but this rule was not invariable.
Anticyra, Ambryssus, and Delphi availed them-
selves in common of the services of a single Del-
phian advocate to plead their cause before the court
of the Amphictiones in 1 1 7 b. c.^ A certain Nysan-
der of Larisa went to Rome as one of the envoys
from Pteleum, having undertaken to champion its
interests in what appears to have been an arbitral
inquiry before the Senate,^ and an Athenian is found
amongst the representatives of Delphi,* while of the
three advocates who appeared on behalf of Calymna
before the Cnidian board of arbitrators the first men-
tioned is a Milesian, probably one who had made a
name for himself in the conduct of such cases, and
his two colleagues are Calymnians.* An even more
remarkable example is that in which Euboean arbi-
trators, summoned to Geronthrae to settle civil suits
there, make such an impression that they are asked
to represent the state in an arbitration case then
pending.* Further, these representatives of the state,
even if they were all citizens, were not all entrusted
with the same function. This is brought out clearly
^ The envoys who accompanied the Delphian Amphictiones on
their tour of demarcation were far more numerous than the three
who originally pleaded the cause of the states involved in the
dispute. See xxvi, Col. B 11. 29-32, C 11. 1 1-20.
* XXVI, Col. B 11. 30 ff. ^ xxxni. * xxiii.
* Lxxv, 11. 88 ff.
* IV, 11. 16 ff.; but this interpretation of the inscription is not
certain.
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ii8 INTERNATIONAL ARBITRATION
in a Magnesian decree in honour of its delegates
at a recent trial, where oi SticatoXayi; ^cWc? , those
who made the speeches before the tribunal, are
sharply distinguished^ from oi eySiicot, twelve in num-
ber,2 who probably * watched the case ' in the Mag-
nesian interest : most likely the same distinction unr
derlies the phrase used by the Magnesians, this time
themselves acting as arbitrators, that they took the
oath
'trapovTiav t&v re SioSiica^ofiei^ctii/ dif} eicar€/>a9
7roXcfti9 Kol rSiv avvTrapovro^v avrolsy^
though in all probability the latter part of the clause
includes also the secretary of the delegates. This
functionary, though only twice named in the records
of Greek international arbitration,* must have accom-
panied the state representatives on all, or nearly all,
occasions, and was probably a citizen of high stand-
ing. There is no reason to believe that the number
of representatives appearing on each side in an ar-
bitral case was equal or was in any way limited ; in
fact, we know of a boundary-delimitation at which
Megalopolis was represented by nine of its citizens
and Thuria by only three,® and of another in which
ten Samian eyScicoc, including a secretary, took part
and between fourteen and eighteen Prienians.® On
the other hand, considerations of convenience some-
times dictated that a limit be put to the number of
* Lxvi, 1. 22 f.; cf. 1. 15.
■ 11. 93-106. Elsewhere, however, the ^xSticot are the actual
orators. ' lvi, 1. 27f.
* Lxxv, 1. 2 1 f. ; Lxv, 1. 18 (restored), iv, 1. 20, is not to the point.
* VIII, U. 5 ff. LX, 11. 92 ff., is not relevant here.
* i<xv, 11. 15 ff.
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PROCEDURE OF THE TRIBUNAL 119
those who actually pleaded. The Cnidians allowed
each of the contending parties to bring four advo-
cates {<rwdyopoi)y^ but they did not make full use of
the permission, the Calymnians bringing only three
while the other side was represented by a single ad-
vocate.^ Sparta and Messene, on the contrary, relied
each upon a single orator to plead its cause before
the Milesian court*
That these representatives were elected and not
chosen by lot is not ordinarily stated just because the
fact is self-evident. On such critical occasions the
state must rely upon the highest legal and oratorical
ability at its disposal. Yet the term * elected' appears
more than once,* and there is a famous case in Athe-
nian history of which we have full information. The
dispute between Delos and Athens over the control
and administration of the Delian sanctuary was to be
submitted to the arbitration of the Amphictiones, and
Aeschines was elected by the Assembly as an Attic
advocate {ovvBlko^); the ratification of the choice was,
however, left to the Areopagus, which unanimously
deposed Aeschines and elected Hyperides in his
place.* In the arbitration suit between Athens and
Megara for the possession of the island of Salamis,
Solon was appointed to represent the Attic cause,
and various stories were current in later times of the
way in which his sagacity, or perhaps we should
rather say his unscrupulousness, gained a favourable
verdict for his state.' The Megalopolitan repre-
' Lxxv, 1. 18 f. 2 U. 86 ff. » 1, 11. 60 ff.
* Lxii, 1. 14; Lxvi, 1. 93; Lxix, 1. 14; Lxviii, 1. i44f.; and
see the following note.
•* Dem. xviii. 134 f. ; Vtt. X Orat 850 a.
• See pp. 54, 134, 150 f-
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I20 INTERNATIONAL ARBITRATION
sentatives on the occasion of a boundary-delimita-
tion between Megalopolis and two of its neighbours^
included at least three prominent men — Diophanes,
son of Diaeus,* Thearidas, son of Lycortas,^ and the
historian Polybius, perhaps a younger brother of
Thearidas.
The character of the evidence adduced and the
arguments employed by these advocates will be
discussed in the following chapter : here, however,
we must review the information afforded by inscrip-
tions regarding the manner in which the hearing of
the case was conducted.
We may first look at the record of the dispute
between Cos and Calymna, which was settled by
a Cnidian arbitral tribunal.* The question at issue
has already been described,* but reference must
be made to the form in which the evidence was
brought before the court. Full details are given
in the decree, of which the greater part has survived,
passed by the Cnidians to signify their acceptance of
the arbitral office and to determine the procedure of
the 204 citizens who composed the tribunal. The
extant portion begins with the oath which is to be
administered to the judges,^ and then proceeds : ''
•The decrees and the challenges (Tr/odicXiycrt?), and
any other document which is brought, if required,
from the public archives, shall be laid before the
court by each of the contestants, sealed with the
public seal of their respective states, in accordance
with the decrees which those states may pass, and
• VIII. ^ See Dittenberger's commentary, Oiympia V, p. 90.
• Polyb. xxxii. 17. i ; xxxviii. 8. i, 11. * lxxv.
• p. 58. • p. 115. ' LXXV, 11. 10 ff.
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PROCEDURE OF THE TRIBUNAL 121
shall be handed to the generals/ and the generals
shall open and lay before the court all the docu-
ments submitted by both the contesting parties.
And each of the parties shall also hand in its
depositions before the hearing of the case. The
first speech on each side in the trial shall not
exceed eighteen choes, nor the second speech ten
choes. Each side may bring four advocates, and
the advocates may appear also as witnesses. The
secretary brought by each of the parties shall
read out the decrees and the challenges and the
indictment of the case and any other document
which may be brought from the public archives and
the depositions, and the time thus used shall not
be reckoned. The witness who is able to attend
in person shall give his witness in person before
the court, while those of the witnesses who are
unable to appear before the court shall give their
witness in absence before the presidents (cttI tSxv
wpooTaraify in the respective cities on the 24th of
Batromius according to the Calymnian, of Caphisius
according to the Coan, calendar, in the presence of
the contesting parties, should they desire to be
present. The witnesses shall swear the customary
oath to their depositions, namely, that their
witness is true and that they are unable to attend
the court in person, and the presidents shall seal
with the public seal the depositions taken before
them, and any of the contesting parties who so
desires shall add his own seal. Copies of these
depositions shall at once be handed to the contest-
ing parties by the presidents. The presidents
shall send copies of all the depositions witnessed in
Cos, some sealed with the public seal and others
unsealed, to the presidents in Calymna within
twenty days from the date at which they are
See Ditt. Syi/.* 512 note 9.
The presidents, that is, of the Assembly.
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122 INTERNATIONAL ARBITRATION
witnessed, and similarly the presidents in Cal3nBna
shall send copies of all the depositions witnessed
before them, some sealed with the public seal and
others unsealed, to the presidents in Cos within
twenty days from the date at which they are
witnessed, and the presidents shall carry out with
r^ard to the depositions all the other steps
required of the presidents in Cos. Those of the
Calymnians who visit Cos to hear the depositions
shall have their safety guaranteed in Cos by
Philinus.^ Further, the generals shall allow each
side to examine the witnesses individually after
the first speeches in the trial have been delivered ;
and each side shall examine the witnesses in all
matters pertinent to the case, but none others, and
the generals shall compel the contending advocates
to answer a question put by the witness if he fails
to understand the question addressed to him and
asks an explanation of it from the advocates. And
if the speeches are not finished on both sides when
the time expires, they shall speak until the water
runs out. When the speeches have been con-
cluded, the generals shall at once take the votes.'
The instructions given in the foregoing decree are
so clear and precise that they require but little
comment. That they are typical rather than excep-
tional may be inferred from the striking resemblance
they bear in many respects to the procedure of the
Attic courts,^ although no doubt the course followed
by other arbitral tribunals will have differed in
details from that prescribed for the Cnidian board.
The proceedings open with speeches, limited in
duration, delivered on both sides ; • into the course
^ Philinus was the guardian of the Coan claimants, and appeared
as sole advocate on their side at the trial (lxxv, L 86 f.).
• See Ditt. Syll} 512 note i. » lxxv, U. 17 ff.
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PROCEDURE OF THE TRIBUNAL 123
of these are introduced the evidences adduced by the
advocates in support of their statements — depositions
of witnesses, whether present or absent, decrees
or other public documents, duly attested by the seal
of state, and read aloud to the court by the secretary.
The clock is stopped during the reading of these
documents, for it is only the actual speech of the
orator on which a time-limit is imposed. Then
comes an interval for the cross-examination of such
witnesses as are present, and at its conclusion the
advocates are again allowed to address the court,
this time more briefly than before. No further
speaking is permitted, and the court at once proceeds
to find its verdict, which is apparently given with-
out any 'retirement of the jury' or any combined
consideration of what that verdict should be.
The same precautions are taken in the Attic
courts to guard against the danger of excessive
length in the advocates speeches, and they reappear
in the Milesian trial of the dispute between Sparta
and Messene, in which each of the advocates was
limited, by common consent,^ to fifteen Milesian
metretae for his first speech and five for his second.^
When the evidence and the arguments brought
forward by each side had been heard and examined,
the court might at once proceed to vote. Such, we
have seen, is the course prescribed for the Cnidian
tribunal :
iav StSoKTO) TOt oT/)aTa[yol] ra? \l/d<f}0'i^^ auriica /xaXa].^
But in some cases another method was tried.
Instead of pronouncing a judicial verdict, the
* h I' 59- * h IL 56 ff. ' LXXV, 1. 51 f.
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124 INTERNATIONAL ARBITRATION
arbitrators attempted to settle the dispute by media-
tion, that is, by inducing both the parties concerned
to agree to an equitable adjustment In this way
the state which had made out the stronger claim
would gain all that for which it was contending,
whilst the other would be spared the blow to its
prestige involved in an adverse decision, carried
perhaps by an overwhelming majority. This
practice, together with the reason which led to its
adoption, is most clearly described by the Magnesian
arbitrators in the case of Itanus and Hierapytna/
while another arbitral court has similarly left it on
record that it postponed for a considerable time the
writing of its award
€V€K€1/ TOV XPOVOV lKa[vOV]
So6[r)]iiev ct9 (rvWva-w rot? 8ta[^/)]o/jic[i/]ot9.*
But we are not to regard these as isolated
instances. The same procedure is involved in the
decree of the Pitanaeans expressing their acceptance
of Pergamene arbitration in their dispute with
Mytilene. The arbitrators, it is enacted, shall give
their verdict on oath,
*and their judgements (ra Kpidivra) shall be
valid and unalterable. Likewise also they shall
inscribe upon a stele the agreements made
(to (Tvv\vd4vTa)y if accepted by both sides/ '
Again, the Rhodian arbitrators refer to the request
made by the Samians and Prienians to the Rhodian
people that they will appoint men
^ovvTi KoX awo<l>avovvTai ^ cruXXvcroGi^i,*
' LVI, 11. 31 flF. • II, 1. 12 f.
» Lix, U. 31 ff. ; of. 11. 73 f., 100 f. * LXii, L 12 f.
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PROCEDURE OF THE TRIBUNAL 125
in which passage the first three verbs refer to the
duties of a board of arbitrators in the strict sense of
the word, while the last (joined to the others not by
Kctt, but by the adversative 17) refers to the act of
a mediator. A similar instance, though belonging to
a much earlier- date, is afforded by the Cleonaean
award in the suit between the Oljrmpian temple
authorities and the Arcadians and Stymphalians : ^
the general heading, icaraSticat ica[l 6/toXoytat], refers
to the two classes of assessments, those in which the
Cleonaeans had exercised the arbitral authority
entrusted to them, and those in which the two parties
agreed upon an assessment and thus rendered
arbitral intervention neejiless. These examples will
serve to illustrate a practice which we must believe
to have been very widespread.* The reason is
plain. To mediate is the function of a friend, to
arbitrate that of a judge, and mediation, where it was
possible, was a pleasanter and less invidious solution
of the difficulty than the award of an arbitral court,
and one, moreover, less calculated to wound the
susceptibilities of the party which had the weaker
case. Thus we find the Pergamene tribunal already
referred to expressing its determination
1A.V <l>f]^x[&p<i>^ oXK* <u9 fiaXurra olov t€ y€voi/r]o
avTot9 [cruy}y€mKm hnXvcai ra i/eii^rj],^
and the decrees in which Pitane and Mytilene accept
its intervention both lay emphasis on the close kin-
ship which unites them to the Pergamene state.
* XI.
' See also v, 11. 5, 21 ; xii, C 1. 3 ; xviii, 11. 17, 19 ; xlv, A 1. 15,
B 11. 17, 20, 27, 30 ; Lvn, 1. 3 ; lviii, 1. 47 ; lxxxii, U. 8, 10, 11.
• Lix, 1. 97 f.
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126 INTERNATIONAL ARBITRATION
Further, friendship between the two disputants is
more likely to be secured by mediation resulting
in an agreement than by arbitration. It is this
thought which leads the Magnesians to bring
forward so prominently the idea of friendship
between Itanus and Hierapjrtna in connexion with
their attempted mediation. Their aim is not
merely to settle a dispute, it is rather to cement
a friendship where in the past there has been a feud:
their efforts are directed, to quote their own words,
to * the restoration of the original friendship ',^ and
in their minds, as in their record, avkkva-u^ koX ^tXta
stand in very close relation. And this same attempt
to settle quarrels upon the basis of mutual agree-
ment, wherever this was practicable, appears as
a characteristic feature not only of the work of
international arbitrators but also of the procedure of
those judges who were called in by Greek states
from friendly cities to decide internal differences,
and to try cases which, it was thought, would be
more satisfactorily dealt with by external judges.*
We have constantly reiterated testimony to the fact
that these exerted themselves to bring about,
wherever possible, a 'settlement out of court', and
only in the last resort employed the judicial authority
vested in them.^
But while we cannot but highly commend this
desire of the Greek arbitral courts to bring about
a settlement of the disputes submitted to them
which should not merely be equitable and final but
* Lvi, 1. 33 f.
* Sonne, Ard. p. 52 ff.; cf. Hitzig, Staatsvertrage,
^ e.g. Ditt. -Sy//." 228 1. 4 f.
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PROCEDURE OF THE TRIBUNAL 127
should also pave the way for a better understanding
between the states involved and thus render the
recurrence of similar differences in the future less
probable, we cannot close our eyes to the fact that
those who composed those courts were essentially
arbitrators and not mediators. An arbitrator may
mediate, but a mediator as such has no arbitral
authority, and in the cases before us, where a solution
could not be reached by mutual agreement, the court
had the right and the duty of pronouncing an award
which was binding upon both parties. We can well
understand that in a large number of cases this was
found necessary. For the usual and normal method
of settling international disputes amongst civilized
states is neither mediation nor arbitration but
negotiation. Only when the resources of diplomacy
fail to solve the difficulty is external intervention
permitted or invited. Among the ancient Greek
states there was an active and highly developed
diplomacy, so that most causes of friction never
came before external judges at all, and, that being
the case, it is hardly to be wondered at that in
numerous cases mediation was found to be no more
effective than negotiation had been. Yet there is
a note of genuine disappointment in the Magnesian
statement which immediately follows the passage
already quoted : •
rfj^ Bk wpoOececi}^ Tj/iiav firf TcX[€]tov/x€|i/ij9 8ta to
vncpfiakXovTO)^ avrov? Tfjv wpos dXXrjXov? ff^ikoviKiav
ci/coracr^at, (rvvifirf rrji i/ri^^cot | rrfv Kpiaiv fipafiev-
drjvaiJ
Before voting the judges took the oath, if they
* LVI, 11. 35 ff.
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128 INTERNATIONAL ARBITRATION
had not. already done so earlier in the proceedings.^
Then the votes were given, being distributed to the
members of the tribunal, if a large one, by the
presiding ofificer or officers.* On one occasion
the voting is expressly said to have been secret
{Kpv<f)aL<a^),^ and this may represent the normal
practice; there can be no doubt that questions of
this kind were settled in accordance with the usage
obtaining in the state represented by the arbitral
court. The actual number of votes given on each
side is four times recorded. In the arbitration
record of the Delphian Amphictiones the verdict of
each community represented in the council is set
forth separately, and we see that the twenty-four
votes were all given in favour of the maintenance of
the frontier-delimitation of 337 B.C.* Of the six
hundred Milesians who arbitrated between Sparta
and Messene, 584 voted in favour of the latter and
sixteen in favour of the former ; * in the case
between Cos and Calymna the majority was decisive
though not equally crushing, 126 Cnidians voting for
the defendants and seventy-eight for the plaintiffs ; ®
finally, in the dispute between Cierium and Metropolis,
298 of the judges took the side of the former and
thirty-one of the latter, while the remaining five
votes were invalid (aicv/oot), for some reason which
is not stated.'' In none of the other extant records,
however, is any reference made to the partition of
the votes, for the verdict of the majority was
^ p. ii5f. * Lxxv, 1. 52.
3 XLi, 11. 2, [14], 20. * XXVI, Col. B 1. 32-C 1. 8.
» 1, 11. 66 ff. • LXXV, 11. 83 flF.
' XLI, 11. 5 f., 14 f., 20 ff.
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PROCEDURE OF THE TRIBUNAL 129
regarded as that of the whole court, no * minority
report* being admitted, and was published accord-
ingly.
In all such cases, where the members of the court
were citizens of a single state and gave each one
vote, the procedure is quite simple so far as it is
reflected in the extant inscriptions, nor is it easy to
see how any difficulty could arise except by an
equality in the votes given for each side in one of
the rare instances in which the court consisted of an
even number of judges.^ Even simpler was the
determination of the verdict where the arbitrator
was a single individual and there could be no
question of a dissentient minority. One pheno-
menon does, however, call for examination and
discussion. In at least six instances known to us^
the tribunal is not homogeneous, but consists of
representatives of two or more states.^ In some
of these the difference of citizenship may have been
ignored and the award decided, as in the cases
already discussed, by the majority of the votes
given ; but a passage of Plutarch * suggests that this
method was not always followed. He tells of
a dispute between Andros and Chalcis in which
those two states agreed to refer the question to the
arbitration of Erythrae, Samos, and Paros, and goes
on to state that the Erythraeans and Samians voted
in favour of Andros, the Parians in favour of
Chalcis. This is most naturally interpreted as
^ pp. lOI ff.
^ XVI, XXVIII, XXXIV, Lvii, Lxx ; Plut. Quaest Graec. 30. xxvi
does not stand on quite the same footing. ' See p. 97.
* Quaest Graec, 30.
1496 K
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I30 INTERNATIONAL ARBITRATION
implying that the arbitral court consisted of three
separate panels ; each of these gave a single verdict,
determined by the majority of the votes of its
members, and the decision of the court as a whole
depended upon that of the majority of the three
panels. We have here, to my mind, the explanation
of the statement made by the Narthacians to the
Roman Senate about 150 b.c., that two years
previously (erct aviirepov rpirfj}) they had been
successful
iwl rpiS^v hiKaarripiciiv, iwl ]!Sa/xiaii/, KoXoifxomcDV,
Dittenberger ^ agrees with Viereck* in thinking that
in these words a single composite court is referred
to, but suggests that the phrase was perhaps
intentionally chosen to suggest to those who were
not acquainted with the facts that the Narthacians
had been successful in three successive arbitral
trials. The former conclusion compels assent ; it is
inconceivable that the same case should come up for
decision three separate times within a single year.
But the second hypothesis, though not excluded, is
rendered unnecessary if we interpret the statement
of the Narthacians to mean that in a court composed
of three panels they had secured the favourable
verdict not merely of two, but of all three. It may
seem too bold to interpret the events of 150 b.c.
by those which had taken place some five centuries
earlier,^ as has just been done, but it may be that
a further example of the same procedure is to be
found in the arbitration between Myus and Miletus,
' XXXIV, 11. 55 ff. « Ditt Syi/.* 307 note 25.
' P. Viereck, Sermo Graecus^ xii.
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PROCEDURE OF THE TRIBUNAL 131
which must be dated soon after 392 b.c.^ The
main extant fragment of the record begins by
giving the names of twenty-five judges, comprising
five from Erythrae, Chios, Clazomenae, Lebedus,
and Ephesus respectively; but whether all the
other states of the Ionic Confederacy were similarly
represented on the tribunal or not it is impossible
to determine. In any case it seems to me to be
probable that on this occasion also the votes of the
individuals were to determine those of the panels,
and those of the panels that of the whole court
A further case in which the same method of arriving
at a verdict may have been adopted is that in which
the court is composed of citizens of Rhodes, Delos,
Paros, and a fourth state, but the record is too
mutilated to show whether all four were represented
by an equal number of Sticcurrat, and the even
number makes it less probable that the votes were
counted by panels, since an equal division might so
easily have resulted,*
' LXX. ' Lvn.
K 2
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V
THE EVIDENCE ADDUCED IN ARBITRAL TRIALS
In the preceding chapter we have examined the
procedure followed by Greek arbitral courts from
the time of their appointment down to the finding of
the verdict Our next task is to inquire into the
nature of the evidence which they were called upon
to examine and weigh. This evidence was very
diverse in character and conflicting in tendency, as
was inevitable at a time when clear title-deeds, as we
now understand them, can hardly be said to have
existed at all, and when a skilled pleader might influ-
ence a popular court by appeals which would be
regarded at the present day as wholly irrelevant.
Fortunately the ancient arbitrators thought well in
some instances to append to their award a summary
of the main evidence upon which their decision was
based, and we are therefore in a position to judge of
the pleas p«t forward by each side in a number of
important cases.
The form which the evidence took and the manner
in which it was presented to the court are most fully
described in the Cnidian decree already quoted,^
but neither in that document nor in the account of
the trial which follows is anything said of the
contents of those ' decrees and challenges ' and other
public documents, of the depositions of absent wit-
* pp. 1 20 fF.
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THE EVIDENCE 133
nesses to which reference is made, or of the argu-
ments used by the several speakers and the testimony
of witnesses to which they appealed for confirmation.
All this we are left to infer from the summary of the
claimants' case, which the court has put on record,
culminating in the demand for the repayment of
thirty talents.^ Of the Caljrmnians' defence nothing
is said : the inscription ends abruptly by stating that
a verdict was given for the defendants by 1 26 votes
to seventy-eight, and recording the date and the
names of the counsel on either side,*
All the other examples of international arbitrations
in which we learn anything of the evidence relate to
territorial disputes, whether between neighbouring
states regarding the boundary between them, or
between states which put forward counter-claims to
the possession or administration of certain territory.
Had fortune preserved to us the Oratio Deliaca of
Hyperides, in which the orator successfully cham-
pioned before the tribunal of the Amphictiones the
claims of Athens to the administration of the Delian
sanctuary, we should have a clearer idea of the form
which such speeches ordinarily took and of the evi-
dence upon which their authors relied. But the few
fragments of this speech which survive ^ tell us but
little of its structure and content, though it is significant
that the longest but one of them deals with the wander-
ings of Leto and the birth of Apollo and Artemis,
and that Maximus Planudes writes that Hyperides,
'desirous of proving that the Delian sanctuaries
* Lxxv, 11. 53-82. • IL 83-90.
' Hyperidis orationes et fragmenta^ ed. F. G. Kenyon (Oxford,
^9^\Jrgg. 67-75.
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134 INTERNATIONAL ARBITRATION
belonged of old time to the Athenians, has made
great use of mythology \^ A similar appeal to Greek
tradition and to the testimony of the early epic poems
• is attributed by several authorities * to Solon, who is
said to have quoted before the Spartiate arbitrators
two verses ^ from the Homeric Catalogue of the
Ships, of which the second was currently supposed
to have been invented by him in order to support
the Athenian claim to Salamis. Of the historical
truth of this story we cannot judge with certainty,
but in view of what is known of Hyperides speech
and of the appeals which we shall proceed to examine,
it must at least be conceded that the tale se non e
vera e ben travato. Even in a.d. 25 the envoys of
the Spartans, who maintained before the Senate the
claim of their state to the possession of the ager
Dentheliates and the temple of Artemis Limnatis,
relied upon
annalium memoria vatumque carntina^
But the Messenians were not to be outdone; they
put in a counter-appeal to the
vetus inter Herculis posteros divisio Peloponnesi
and to the
monimenta eius ret sculpta saxis et aere prisco,
and went on to assert that
si vatumy annalium ad testimotiia vocentur^
plures sibi ac locupletiores esse.^
* Max. Planud. ad h, L t. V, p. 481 Walz {Oratores AtHci ii.
p. 392, ed. Didot). '
' Plut. Soloriy 10 ; Strabo, ix. i, p. 394 : cf. Arist. Rhet i. 15. 13,
p. 1375 b; Quintil. InsU Orat v. 11. 40.
* lUad ii. 557-8. See Leafs note ad loc.
* Tac. Ann, iv. 43. ■ Tac, loc. cit.
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THE EVIDENCE 135
And the appeal to this noble array of bards and
historians, coupled with the authority of, the in-
scriptions, won for the Messenians on this occasion
their sixth victory in the long series of arbitrations to
which this temple and strip of border-land gave rise.
Turning from these statements of ancient orators
and historians to the more precise indications afforded
by the epigraphical sources, we find five specially
striking records in which the evidence brought before
arbitral courts is set forth in some detail. The
earliest of these ^ consists of the opening portion of
a rescript addressed to * the Council and People
of the Samians' by King Lysimachus (306-281 B.C.),
who had undertaken to settle a dispute between
Samos and Priene, which had begun some three
centuries earlier and was destined to continue for at
least a century and a half longer. Unfortunately the
latter part of the letter, containing a statement of
the Samian arguments and the award of the king,
has perished, but we still possess a risumi of the
case for the Prienians, as stated by their envoys.
These set about to prove,
6IC r€ rSiv ioTopiiov koI ck t&v aXXoii^ iiaprvpioiv
KoX Sticataifiaraii/ /xera rwv i^er&v arirovhSiVy^
that the territory in dispute had belonged originally
to the Prienians, and that their tenure of it had been
uninterrupted down to quite recent times, save during
a short period when the Cimmerian invasion, under
the leadership of Lygdamis,^ caused the withdrawal
^ LXi. For the date see p. 41. * lxi, 1. 12 f.
^ That the Lygdamis of lxi, U. 14 ff., 29 if. must be the
Cimmerian leader referred to by Strabo i. 3, p. 61 and Hesych. s. v.,
rather than the Naxian tyrant of that name, has been demonstrated
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136 INTERNATIONAL ARBITRATION
of all the Greek inhabitants of the district. Samians,
indeed, had settled there from time to time, but only
in the position of resident aliens (icaroiicot), and their
payment of taxes to the Prienians had amounted to
a virtual acknowledgement of the claim of the latter
to be the rightful owners of the land. Indeed, that
claim had been formally acknowledged in a treaty
{(TvvS'jJKTf) negotiated by Bias of Priene, and in virtue
of this the Prienians requested Lysimachus to restore
the territory to them. What was the Samians reply
and what were the authorities to which they
appealed the mutilation of the stone prevents us
from learning, though a later record definitely states
that they too on this occasion brought forward the
witness of historians ; ^ but that the evidence was
regarded by the king as satisfactory we may infer
from the fact that the award appears to have been
in their favour.*
About a century later a Rhodian tribunal is
appointed to arbitrate ' about the territory in dispute
between Samians and Prienians . . . and the fortress
called Carium *, which lay within it.^ On this occasion
it was the Prienians who were successful, but for us
the interest of the trial lies chiefly in the detailed
account of the arguments employed by the two con-
tending parties, which was published by the court as
an appendix to its award. It occupied originally
some 1 80 lines of the record discovered at Priene
by Lenschau {£>e rebus Frienensium^ pp. 126 if.) and Dittenberger
{O.G.L 13 note 9).
* LXii, 1. 102.
* I follow Waddington, Lenschau, and Dittenberger here in
preference to Hicks and B^rard.
^ LXII, 11. 7 ff., 25 f.
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THE EVIDENCE 137
and now in the British Museum, and of these ninety
are preserved almost entire or are capable of fairly
certain restoration. The Samians, as claimants,
spoke first : ^ they told, in a passage which has come
down to us in so fragmentary a condition that little
is now discernible save its barest outlines, of the war
which they and the Prienians had waged in common
against Melia,^ and of the subsequent partition of
the conquered territory between the victorious allies.
The question at issue was whether on that occasion
Carium and Dryussa fell to the lot of the Samians or
no. The Samian representatives pointed to a passage
in the Histories of Maeandrius of Miletus as substan-
tiating their claim. The Prienians,^ in their answer-
ing speech, dwell upon a more recent episode in their
history. A tyranny had been established in Priene
by a certain Hiero,* and a body of citizens who had
been exiled by the tyrant and his adherents seized
the fortress of Carium and put to death its comman-
dant and garrison, who unanimously declared in favour
of the tyrant ; after three years ^ they succeeded in
overthrowing Hiero's rule and returned to their
city, but * retained the fortress as aforetime and culti-
vated the land' around it* In the following year
they sold thirty-seven lots of the territory in question,
and five years afterwards five further lots were simi-
larly disposed of "^ This statement, which, if correct,
proved conclusively that Carium was in Prienian
hands during the first twenty years of the third
century B.C., was substantiated at every turn by the
* 11. 44 ff.
» 6 TrdXe/ios 6 McXiaic^, 11. 56, 108, 1x8. » 11. 63 ff.
* 1. no f. » 11. 81, 112. • 11. 81-83. ' U- 83-90.
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138 INTERNATIONAL ARBITRATION
production of official documents : we hear of a decree
sent by the tjrrant and his adherents to the liberators,
of decrees dispatched by several states to them after
their seizure of the fortress,^ of a decree which the
liberators sent to Rhodes asking for assistance, of
Prienian appeals to Kings Demetrius and Lysimachus,
of three similar documents sent by or to Rhodes at
the same crisis and, finally, of ' two other decrees
existing in the temple' of Athena, confirming the
sale of the thirty- seven lots of land. To all this there
is but one answer which the Samians can make ; ac-
knowledging the facts as stated by the Prienians, they
maintain that the land in dispute, which was origin-
ally and rightfully theirs, had been appropriated by
their rivals. This plea and the fact of an appeal to
L5rsimachus may be inferred from the extant fragment
of the Samian reply,^ which has almost entirely
perished, together with the whole of the Prienian
rejoinder with the exception of its concluding passage.
This is to the effect that in a letter from Agesarchus
dealing with the questions at issue between Samos
and Priene, only private disputes had been mentioned
and no word had been said of any claim laid to the
fortress and the surrounding territory. In a fifth
and final speech the Samians give a summary of the
whole question from their point of view.^ By bring-
ing forward the historical evidence which had served
them in such good stead in the former arbitration
before Lysimachus, they tried to prove that Carium
and Dryussa had fallen to their lot, in the seventh
^ One of these, sent by Ephesus, has survived : %tit Jaknshefte,
ii, Beiblatt, 47 f. ; 7. v, Prieney 494.
Ml. 9off. Ml. 101-118.
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THE EVIDENCE 139
century b.c., after the conclusion of the Meliac War,
as was asserted by Maeandrius of Miletus. The
famous battle at * the Oak ' was followed by a treaty
negotiated by Bias for the Prienians, under the terms
of which the territory still remained Samian, since
the frontier-line between the two states was placed
at the watershed; that this was actually so was proved
by the statements of the historians Euagon, Olym-
pichus, and Duris. The fortress had then remained
in Samian hands until seized by the Prienian exiles as
a base of operations against the tyrant Hiero. It was
not, however, until after the overthrow of the tyranny
and the return of the liberators to their city that the
Prienians first laid claim to the land, on the occasion
of a revision of their land-register made by the
Samians with a view to prevent the possibility of
territorial disputes. Under these circumstances they
claimed * that the lot which had originally been their
own, but had subsequently been taken from them by
the Prienians, should be restored to them '.
So far the arbitrators have given us a summary
of the speeches delivered by the advocates represent-
ing each state and the documentary evidence brought
forward. They go on to set forth a statement of the
reasons which have led them to give the award in
favour of Priene.^ The mainstay of the Samian
cause consisted of certain passages relating to the
division of the spoils after the Meliac War in his-
torical works, four of which had been expressly
cited as favouring the Samian claim. An examina-
tion of these writings, however, proved that only in
the history which bore the name of Maeandrius of
' 11. 118-157.
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I40 INTERNATIONAL ARBITRATION
Miletus was it stated that Carium and Dryussa fell
to the lot of Samos, and the authenticity of that
treatise was widely called in question.^ All the other
authoritiesagreed in statingthat Phygela had been the
Samian share — Creophylus and Eualces of Ephesus,
Theopompus of Chios and, most significant of all,
the four native Samian historians, Uliades, Euagon,
Olympichus, and Duris. Further, after the award
given by Lysimachus, although it had been proved
that the Prienians were in possession of the territory
in question and actually sold forty-two lots, yet no
protest had been lodged by the Samians, no embassy
sent to Priene to remonstrate against their action.
Again, in 258 B.C., when Priene was in difiiculties,
the Samians sent envoys to charge the Prienians
with the transgression of their frontiers, but again
no mention was made of the fortress Carium. The
same was true subsequently on more than one
occasion : though there had been no lack of recrimi-
nations on the part of the Samians, these had not
been prompted by the Prienian occupation of Carium
and its immediate neighbourhood. Bearing all this
in mind, the arbitrators conclude their report with
the statement that they have found all the conten-
tions of the Prienians absolutely justified and they
therefore give judgement in their favour.
The third document ^ which calls for examination
here is also concerned with a territorial dispute in
which Priene was engaged with a powerful neighbour
about the same time (soon after 190 B.C.); on this
occasion the quarrel was with Magnesia on the
Maeander, and the case was tried by a court appointed
M. 123. * LXVI.
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THE EVIDENCE 141
by Mylasa. But the circumstances were in some
ways strikingly different. In 201 b. c. Philip V of
Macedon had made himself master of the city and
territory of Myus and had presented them to the
Magnesians : ^ it is a portion of this land which, less
than a quarter of a century later, is in dispute. Part
of the summary of the evidence, as drawn up by the
arbitrators, is still extant ^ and proves, as we should
expect, that the appeal in this case is not to historical
records, but to the actual facts of a recent situation.
The opening lines of the passage are so fragmentary
that they supply us only with isolated words
and phrases, the connexion between which is no
longer traceable. In one place they refer to xfyq-
jjLaTiariioij documents deposited in the public archives,
and in another to a visit paid by the tribunal to the
territory in dispute. Then follows a continuous
statement, the general meaning of which is clear,
although in details it presents some difficulties of
interpretation. It insists chiefly upon the failure of
the claim put forward by the Prienian advocates on
behalf of their state. A raid (/caraS/oo/jtif) had been
made into the disputed area by marauders, who had
burned buildings and carried off cattle. If the land
really belonged to the Prienians, why were they not
there to guard it and to maintain their possession ? ^
The Prienian representatives urged that steps had
been taken with that end in view ; a certain Lysan*
der of Priene had been entrusted widi the task, but
he had failed to protect the frontier and had in
* Polyb. xvi. 24. 9 MvowTos Kvpicva-aq rots Mdyvrja-w ixapto-aro
TO )((Uipujfv dvTt rwv <rvK<av.
» LXVI, 11. 64 ff. . ' 11. 72 ff.
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142 INTERNATIONAL ARBITRATION
consequence been brought to trial and condemned.
This story was, however, so plainly a fabrication that
it told powerfully in favour of the Magnesians. The
sentence against Lysander, if a genuine one provoked
by a real offence, should have been carried out, or
remitted, or settled in some other way ; but the Prie-
nians failed to show that any action at all had been
taken in the matter, and the fine was found to be still
unpaid. Moreover, the Prienians stated that a certain
Dionysius had assigned to Lysander his task, but
Dionysius was proved by official documents to have
been far away from home at the time of the alleged
condemnation,^ partly engaged in an embassy to
Rome, partly undergoing a sentence of banishment.
The whole story, therefore, failed to carry conviction,
but even apart from this (the report continues) the
irrefutable account of the Prienian raid was sufficient
to prove that the Magnesians were in possession at
the time and were cultivating the land. A previous
statement of the Prienians, the precise force of which
we cannot now determine, and a letter read by them
in support of their claims, are mentioned only to be
dismissed as failing to explain the Prienian action.
We learn something, too, of the nature of the
evidence from the arbitral award issued by a Perga-
mene tribunal in a territorial dispute between Pitane
and Mytilene ^ soon after the middle of the second
century B.C. The statement^ is so seriously muti-
lated that no sense can be made of the greater part
of it, but we learn that on this occasion also the
works of historians were used as evidence,* while
* 1. 8 1 cXcycro 17 Kara^iaj [yeyovjivai, ^ LIX.
» 11. 123-156. * 1. 125.
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THE EVIDENCE 143
fragmentary phrases such as * having occupied this
territory*^ and * retained in their hands for many
generations ** seem to indicate an appeal to prescrip-
tive right. But the Pitanaean claim was supported
by more modern and more cogent evidence as well.
They were able to point to a sale of certain terri-
tory by Seleucus I Nicator (306-280 b.c.) and to
their purchase of 17 7rc8ta$ x^P^ from his son and
successor Antiochus I Soter (280-261 b.c), and
in confirmation of the latter they appealed to an
inscription set up in the Athena-sanctuary on the
Pergamene acropolis. Their absolute ownership
(7rayKn7Tt/ci7 tcvpeCa) of the land in question was * irre-
futably proved' by marble stelae dedicated in the
sanctuaries at Ilium, Delos, and Ephesus, on which
was inscribed Antiochus rescript relating to the pos-
session of the land in question. Further, the Pita-
naeans were able to produce a letter of Eumenes I
(263-241 B. c.) confirming their ownership in terms
which are quoted icara Xe^Lv by the arbitrators :
* and we grant you also the absolute, undisputed
and acknowledged possession of the land for ever/*
From this point onwards the report is very fragmen-
tary, but two facts seem to be established. The
dispute arose in connexion with a decision — ^possibly,
but not certainly, arbitral — pronounced by Antiochus
in a question concerning Elaea ; * but the difficulty
was apparently overruled by the court in view of the
rights of the case in general,* and the award was
given in favour of the Pitanaeans.
* L 126. • 1. 127.
' 1. 142 f. * 1. 144.
" 1. 147 [w€/>t] iravfitiv to Sucaiov 6'c<i)po[wT€s].
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144 INTERNATIONAL ARBITRATION
Within a few years of this time, probably in 139
B.C.,* the Magnesians undertook, on the request of
the Roman Senate, to arbitrate in a territorial dispute
between Itanus and Hierapytna, in eastern Crete.
Of the report of the tribunal^ a considerable portion
has survived, partly in the inscription set up at
Magnesia and partly in the replica inscribed by the
Itanians to commemorate their victory. The report
opens with a brief historical introduction,^ giving
a sketch of the events which had led up to the
dispute,
' as contained in the documents submitted to us
bearing upon these points,*
and apparently unquestioned by the Hierapytnians,
and the appeal of Itanus to the Senate, together
with the exact terms of the reference to the present
tribunal, as formulated in a Roman SC.^ This
introduction is followed by the award of the court.
One point had been proved at the outset, that the
territory in dispute had originally belonged to the
Itanians and had been continuously in their posses-
sion • down to the outbreak of the Cretan war which
followed the death of Ptolemy VI Philometor (181-
146 B. c). The Itanians had proved this by adducing
three official boundary-delimitations, which were
acknowledged as genuine by their opponents,®
1. that between the Itanians and the Dragmians,
their formerneighbours ; ^
2. that between the Itanians and the Praesians,
1
Ditt Syi/.* 929 note 7. ^ 17 Ka6riKov<Ta ^x^co-ts, Lvi, 11. 37 fF.
W- 37-54- * W- 51-54- " 1. 55 SieucaTcaxiZ/AcnTv.
1. 57 vfji cKarepwv. ' 11. 59-61.
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THE EVIDENCE 145
after the latter had conquered the Dragmians
and annexed their territory ; ^
3. that between the Itanians and the Hierapyt-
nians, after Praesus had been destroyed and
its territory amalgamated with that of
Hierapytna.*
The crucial passages of these three wepiopLcriioi, the
ip^issima verba of which are quoted in the arbitrators'
report, made it clear that the area in dispute lay
wholly within the Itanian frontiers. This was,
indeed, admitted by the Hierapytnians, who, however,
maintained that it was sacred to Dictaean Zeus,*
and consequently untilled,* This assertion was re-
futed by a number of documents {ypdfifiara), which
showed that the land was under cultivation, as well
as by the SC, which defined the reference of the
arbitration : this had been drawn up by Roman legati,
who had a personal knowledge of the site, aiid, so
far from making any allusion to Upa x^P^^ showed
by its use of the phrase * to have, hold and enjoy
the fruits of the land'' that the area in question was,
and would be in the future, under cultivation.*
A series of parallel extracts from other Roman
smatus cansulta was quoted to prove that in resolu-
tions dealing with sacred lands the Roman Senate
was careful expressly to mention their character,
and thus to rebut the argument which the Hiera-
pytnians had advanced, or might advance, that the
phrase €)(€iv Kariy(€iv re KapTriC^trdaC re was a stereo-
1 11. 61-65. ' U. 66-67.
M. 48. * 1. 73 i€pa KOI ay€wpyiyT05. Cf. 1. 78.
* 1. 79 tva l^oMTtv KaTi\iD(rCv T€ Kop^i^ijDVTai t€. • 11. 73—81.
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146 INTERNATIONAL ARBITRATION
typed formula^ which must not be taken aupiedde
la lettre}
' But the clearest and most convincing evidence
of all/ the report continues^ 'that the Romans
have made up their minds on the case as a whole,
and that the questions upon which we have given
our verdict are acknowledged and already decided,
IS this, that when the Itanians requested the
Senate that the hamlet (xoiptoi/) which had been
built by the Hierap3rtnians upon the disputed
territory should be destroyed, the Senate gave
instructions to Lucius Calpumius L. f. Piso the
praetor that any buildings put up upon it should
be destroyed, making it plain in diis way also. • .' ^
Here the Itanian copy of the award fails us, and the
remaining lines can only be partially deciphered upon
the worn and broken surface of the Magnesian stone.
But it is easy to complete the sense of the sentence
and to determine the character of the culminating
proof referred to. Unless the Senate had been
convinced that the Itanians were the rightful owners
of the land, it would hardly have complied with their
request and given orders to Piso to take such drastic
action against the Hierapytnians.
It cannot fail to strike us in reading this passage
of the report that the arbitrators here frankly acknow-
ledge that they have been greatly influenced by this
clear indication of the Senate's conviction that the
Itanian claims were justified. This may appear to
u$ tantamount to a confession of prejudice and a
refusal to treat the case fairly on its own merits. But
this change must not be pressed too far. The
attitude of the Magnesian arbitrators is rather this,
^ 11. 82-84. • 11. 84-88.
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THE EVIDENCE 147
that the Romans, ' the common benefactors/ ^ are
the sole disinterested witnesses in the case; the
testimony of Itanians and Hierapytnians must be
accepted with caution, but that of the Roman Senate,
instructed by Q, Fabius and his fellow legati, who
had personally visited the temple of Dictaean Zeus
and its surroundings,^ might be r^;arded as wholly
unbiased.
The sequence of thought and argument in the
remainder of the inscription cannot be followed
<:losely owing to the fragmentary nature of the text.
But its general tenor is plain,and some of the evidence
to which it refers is noteworthy. The question of
the disputed area is continued for five more lines,*
in which appeal is made to witness, both oral and
written, in favour of Itanus,and to the 'proofs afforded
by poets and historians '.* The report then passes
on to deal with the island of Leuce, the modem
Kouphonisi, which was also claimed both by the
Itanians and by the Hierapytnians. The former, who,
at a time of weakness, had placed themselves under
the protection of Ptolemy Philometor, were able to
produce copies of letters from that king, which
referred to Leuce as a possession of Itanus,^ and
documents of their own which pointed to the same
fact, as well as official lists recording the annual
administration of the island. They further brought
forward letters from other states, including Hierapytna
' 1. 22.
^ 1. 75. Note the repeated ewpaxorcs. ' 11. 89-94,
* !• 93 [^o&^]t(i>v k<u urropwypaxlHay aTroScii^cis. Cf. /. V»
Magnesia^ 46, 1. 13 f.; Tac. Ann. iv. 43 annalium memoria vatumque
carminibus. * 1. 97 f# •
L 2
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448 INTERNATIONAL ARBITRATION
itself, making it evident that the island belonged to
the Itanians and had been continuously in their
possession down to the Cretan war referred to in
the SC. Their claim was further supported by two
letters addressed to Itanus, of which copies are
inserted in the report, one from Gortyn ^ and the
second from Hierapjrtna.* In the latter is found the
phrase ' from your island of Leuce ',* a clear acknow-
ledgement of the Itanian claim to the island. At this
point the report becomes more rhetorical and
abstract — ^also, unfortunately, even more fragmen-
tary. Who, it asks, could admit the contention of
the Hierapytnians in face of the evidence brought
forward ? A title to land always rests either upon
hereditary possession or upon purchase or upon con-
quest or upon gift by a superior power — ^and in the
present case the Hierapytnians can point to none of
these modes of acquisition as entitling them to Leuce.
A happy chance has preserved for us an interest-
ing fragment,* which gives a verbal copy of the
depositions made in a territorial arbitration in which
the little state of Condaea was one of the interested
parties. The first of these runs as follows :
* Ladicus, son of Harmodius, of Ascuris, bears
witness to the Condaeans. I know the land,
which I also pointed out in person to the judges
as I came down from the summit of Nyseum, the
place nearer to us, as far as the defile, which the
Condaeans too showed to the judges ; and I used
to hear from the older men that at this spot the
land belongs to the Condaeans; and I know of
*^ 11. 116-121. • 11. 1^5-130.
' |. 127 ^K Ta9 v/MS vaxna Acv[Ka9]. * XLHI.
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THE EVIDENCE 149
myself that I have been pasturing my flocks in the
territory for a considerable time and that the Gon-
daeans keep the passage-duty at this spot'
Here we have the testimony of an elderly shepherd,
who has known the district from boyhood and can
tell, moreover, what he has heard from the elders of
his village. Nor is he the only witness cited by the
Condaeans to support their claim.
' And they produced depositions of Mopseates
also, relating to the lower part of the. territory.
[Pjantaeus, son of Cleobulus, of Mppsium . . .
(here the stone is defaced) . . . through the river,
beginning from the confluence of the Peneus and
the Europus, as far as the fishery ^ and the defile
which leads from Orcheum ; and I know that the
Condaeans till and pasture the land round the
tower which lies below Minya.'
Three fellow villagers of this last witness, who own
the river fishery which lies below Croceas, add their
testimony to the Condaean case, maintaining that
their fishery was close to that of the Condaeans,
which lay below Croceas.
The further evidence on the same side is lost
owing to the breakage of the stone, but the passages
which survive show that such boundary-suits were
not settled entirely by reference to poets and his-
torians and official documents, but that the evidence
of shepherds and fishermen, who had pursued their
humble callings in the immediate neighbourhood of
the disputed territory, also had a share in deciding
these momentous contests.
The inscriptions which we haive just examined give
^ KcXerpa IL 26, 33, 35. Cf. Hesych. KcXcrpov* ^ rovs ix&va^
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ISO INTERNATIONAL ARBITRATION
us the most valuable and detailed evidence we pos-
sess regarding the arguments and proofs brought
forward in arbitral courts to make good a title to
disputed territory. And, taken together, they afford
what is in all probability a fairly complete picture,
the main outlines of which are not likely to be altered
by subsequent discoveries, however much these may
serve to fill up some existing gaps and to add detail
and precision.
We have seen that evidence both oral and written
is admitted by the arbitrators. The former will in-
clude not only the testimony of those citizens of the
two contending states who, either because of their
official position or from their knowledge, gained in
other ways, of the question under discussion, can
bear out the assertions of the state-advocates, but
also that of neighbours, of however humble a rank,
whose witness will carry all the more weight because
of its disinterested character. The written evidence
will consist in part of the depositions, duly recorded
on oath, of those witnesses who are unable to appear
in person before the arbitral court ; in part, of the
public documents pertinent to the case, whether con-
tained in parchment or pap3rrus laid up in the state
archives or inscribed upon stone in temples or other
public places ; in part, of literary works, whether in
verse or in prose, which referred to any of the
questions in dispute. Literary, epigraphical, papyro-
logical evidence — we are brought back once more to
our original classification. Nor were archaeological
appeals unknown, if we are to accept as historical the
tradition that, in the famous dispute between Athens
and Megara for the possession of Salamis, Solon
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THE EVIDENCE 151
appealed to the evidence of tombs discovered upon
the island, for (he claimed) the Athenians bury their
dead turned westward, while the Megarian dead lie
towards the east The Megarian advocate, Hereas,
accepted evidence of this character as valid, but
maintained that his countrymen also buried in a west-
ward position, and that the real test lay in the fact
that, whereas the Athenians placed but one body in
a tomb, the Megarians often interred three or four
bodies together.^
Conflicting statements must be weighed one against
another, difficulties arising from the diversity of the
laws in the various Greek states must be solved,*
allowance must be made for prejudice and the dis-
tortion caused by personal or national pride or inter-
est, and on occasion the arbitrators might even be
called upon to sit in judgement upon the authenticity
of a current historical work.^ Moreover, the value of
indirect evidence must frequently be estimated, and
ancient claims, going back sometimes to the mythical
period,* might be at variance with the prescriptive
right acquired by uninterrupted tenure in historical
times. The task of the arbitrators, it need hardly
be said, was often no easy one, especially where the
courts were of large size and democratic composition.
Yet the impression we receive from a careful review
of the extant records is favourable alike to the
thoroughness with which the courts examined all the
available evidence and to the conscientiousness with
which they arrived at their final verdict.
* Plut. Solon^ 10; Aelian, Var. Hisi.yn. 19; Diog. Laert. i.48.
* xLii, IL 31, 32, 38. * See p. 139 f.
* See p. 133 f., and add 11, 1. 35 f.
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VI
THE AWARD
One more task remained before the work of the
arbitrators was accomplished. The award of the
court must be duly placed on record and com-
municated to the two disputants. In a question of
this kind we have to fall back entirely upon inscrip-
tions for our information, but fortunately the evidence
is abundant and presents no special problems.
To judge from a statement ^ of the Magnesian
arbitrators who settled the dispute between Itanus
and Hierapytna, it would seem that sometimes the
members of the arbitral court individually recorded
their verdicts in writing. But this course was pro-
bably exceptional, and in the majority of cases it is
likely that the secretary, or, in his absence, the
president of the court, drew up a written statement
of the award.* Sometimes this was read to the
representatives of the states concerned immediately
after the conclusion of the trial, and copies were
delivered to them to be conveyed to their respec-
tive cities: at other times the verdict alone was
^ LVI, L 3a hjpdtf^ovi Oifievoi ra^ yvutfia^. But the phiase
perhaps means no more than * having written out the votes ' which
were to determine the award of the court : or can the plural ra«
yviDfiai refer to the feet that there were two questions before the
court? In any case, the force of the expression is plainly 'when
we had definitely and finally made up our minds '.
• Cf. n, 1. 12 hriypa^M.
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THE AWARD 153
announced, arid the fuller report was subsequently
composed and dispatched to the interested states,
while there were probably a few cases in which even
the verdict was not at once pronounced. It is plain,
for example, from the use of the aorist and imperfect
tenses throughout the rescript of Lysimachus ^ that
this was written some time after the hearing of the
evidence brought forward by the Samian and Prienian
envoys, for had it been drawn up immediately
after the trial the perfect tense must have pre-
dominated. The important point was that the award
should be made known, clearly and authoritatively, to
the two states most nearly concerned, and this could
only be secured if it was delivered in writing to the
representatives of those states, either immediately or
as soon as convenient after the close of the trial.
The Rhodian report, in many ways the best which
has survived, calls special attention to this part of
the arbitrators' functions ; after recording the award
of the court, it continues : ^
' and having given this award in the case and
made two copies of it, we delivered one to the
Samian prytanes (here follow five names) and to
the Secretary of the Council, Menippus, son of
Cleon.'
Then follows the date, according to the Rhodian and
the Samian calendar, and a second paragraph,
similar to the last, giving in full the names of the
Prienian officials to whom the other copy was handed
with the exact date on which it was delivered to
them. And it is interesting to notice that the
Pitanaeans and Mytilenaeans, in accepting the offer
* LXI. ■ LXII, 11. 27 ff.
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154 INTERNATIONAL ARBITRATION
of the Pergamene envoys to arbitrate between them,
stipulate explicitly that they * shall deliver to each of
the states a written record of the award '.^
While, however, copies of the award were thus
handed by the court to the litigants, the original and
authoritative document remained in the hands of the
arbitrators, and was lodged by them among the
archives of their state,* as we may infer from the
following letter : ^
* The prytanes of the Milesians and those
elected to secure the public safety to the
magistrates and sjmedri of the Eleans, greeting.
Menodorus, son of Dionysius, and Philoetas, son
of Cratias, have come to us as envoys from the
Messenians and ask us to give them a copy,
addressed to you, of the award given to the
Messenians and Lacedaemonians in accordance
with the resolution of the Senate : the council and
the people have granted the aforementioned
request, and have directed us to give them the
award. We have therefore subjomed it to this
letter and have delivered it to the envoys to
convey to you, sealed with the state seal.*
But it was not enough that copies of the arbitral
decision, written on parchment or papyrus, should be
lodged in the archives of three cities,* and measures
were therefore taken in many cases to secure for it
greater and more permanent publicity by inscription
upon metal or stone. We have already seen * that
the account of the Magnesian arbitration between
Itanus and Hierapytna was inscribed upon marble
not only at Itanus, the successful state, but also
* Lix, 11. 30 f., 72 f. * Cf. II, 1. 15. ' 1, 11. 29-40.
* Cf. II, 1. 27. ' pp. 144 ff.
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THE AWARD 155
at Magnesia, and not infrequently the arbitrators
themselves direct that their award shall be thus
published. The Thyrrheans, for example, conclude
their brief award with these words :
* And let the state of Oeniadae and the state of
Metropolis inscribe the award at Thermum, in the
sanctuary of Apollo/ ^
In this case the record was publicly exhibited in the
central place of worship of the whole region, and we
can have no doubt that the successful state also
took measures to have the verdict inscribed and set
up in its own principal temple. Still more explicit
are the stipulations made in the preliminary compact
between Thebes in Phthiotis and Halus, which
embodies the conditions upon which these two cities
refer their dispute to arbitration.* The present
agreement and the award pronounced by the arbi-
trator, Maco of Larisa, are to be inscribed on two
columns (ictoi^s), one of which is to be set up at
Delphi, the other at Larisa in the temple of Apollo
KcpS^^j before the expiration of the year in which
the arbitration takes place, the expense thus incurred
being shared equally by the two states. In addition,
each of the two states is to inscribe upon a column
a similar record and to set it up, the Thebans in
their temple of Athena Polias, the Halians in that of
Artemis Panachaea. In this case, therefore, a qua-
druple record of the terms and result of the arbitration
was published, of which only the Delphian copy has
survived. A somewhat similar proviso is made in
the arbitration treaties between Latos and Olus, in
* xxvii, 11. 7-^.
* XL, 11. 13 ff., 45 ff. Cf. Lxxxii, 1. 10 f.
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156 INTERNATIONAL ARBITRATION
one of which the Cnossians, who are accepted as
arbitrators, are empowered to inscribe their award on
the four Cretan stelae ^ destined for its publication,
within thirty days of its adoption, and are directed to
send a copy to Delos within the same period, for
exhibition in the Apollo temple there.* Precisely
similar stipulations are made in the companion
treaty.' Two further examples illustrating Greek
practice deserve mention. When Troezen and one
of its neighbours, almost certainly Hermione, agree
to . call in three Athenians to act as arbitrators
between them and sanction their mutual agreement,
it is enacted that the record shall be publicly
exhibited
* in the following sanctuaries, that of Poseidon
at Calaurea, that of Asclepius at Epidaurus, and
that of Athena on the Acropolis of Athens '.*
Nothing is here said of inscriptions at Troezen or at
Hermione, but the document just quoted was dis-
covered at the former city, and we cannot resist the
conclusion that there also a copy of the settlement
was inscribed and set up in some sanctuary or other
public place. Again, the award settling the disputes
between Melitea and Perea is to be inscribed
' in Melitea and in Delphi and in Calydon (the
home of the arbitrators) and in Thermum \*
Of these four copies, two, that at Melitea* and
that at Delphi,*^ have been discovered, though the
latter is in a very fragmentary condition.
' Two of these were set up in sanctuaries at Cnossus, the other
two at Latos and Olus respectively : liii, U. ii ff.
' LIII, 11. 22 ff. ' LII, 11. 15 ff. * XIII, 1. 18 f.
" XXXV, 1. 31 f. « XXXV. ' XXXVI.
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THE AWARD 137
Where the arbitral decision embodied a compromise
between the claims of the two opposed states, we
may suppose that it was inscribed in both those
states, but where the result was the triumph of one
of them and the disappointment of its rival, it is
hard to believe that in the latter national pride
permitted the public and permanent exhibition of the
award in some conspicuous place : even if an agree-
ment had been made beforehand so to exhibit it,^ the
authorities would probably find some occasion for
setting it aside as soon as possible. It is at least
significant that of all the extant awards not one has
been found in the unsuccessful city ; • all have come
to light either in that which secured a favourable
decision or in the arbitrating state or in some great
* neutral ' shrine, notably those of Olympia, Delos
and Delphi, and the Epidaurian Asclepieum.
Sometimes the award alone was published, together
with the date, the names of the arbitrators and those
of the witnesses.^ But sometimes the victorious
state, not content with this, inscribed side by side
with these essential particulars other documents
relating to the case. The record of Maco's judge-
ment between Thebes and Halus is preceded by the
agreement drawn up by the two states to define the
terms of the reference and regulate the conduct of
the arbitration.* The Cierians, in their elation over
their victory, gave orders for the inscription of three
documents recording the result of their appeal
»XL.
' ' It is sometimes contended that lxi, which was found in
Samos, records a verdict given in favour of Priene ; but this seems
to me a mistaken view : cf. p. 136.
• e. g. XLVII. * XL.
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158 INTERNATIONAL ARBITRATION
to arbitration, couched in almost identical terms.^
Similarly an arbitral decision, confirmed by some
king or Roman governor, is preceded by a letter
insisting upon its due and speedy execution,* and an
agreement between Paros and Naxos, authorized
and ratified by an Eretrian court, is inscribed
together with a letter from Eretria recounting the
circumstances of the appointment of the tribunal.'
Twenty-five fragments of an immense marble stele,
discovered at Pergamum, bear what remains of a
series of three documents, two of which are decrees
of the Pitanaeans and Mytilenaeans accepting the
proffered arbitration of Pergamum, while the third
contains the report and award of the Pergamene
court* The later iircription upon the base of the
statue of Victory by Paeonius which was dedicated
by the Messenians at Olympia also comprises three
separate documents, but of a more disparate
character.^ The general title,
Kptcrts 'H'epl xdpa^
Mccro-avtot^ koX AaK€Satfiovto[t9],
is followed by (i) a decree of the Elean synedri,®
granting the Messenians permission, as requested by
an embassy, to inscribe at Olympia the arbitral
award of the Milesian court of six hundred, (2) a
letter from the Milesian magistrates to those of Elis,*^
accompanying (3) the official Milesian record of the
case and the award.®
The most striking example of all, however, comes
from a marble pillar erected in a corner of the market-
* XLI. * LXVn. » XLV.
* Lix. * I. • 11. 3-28. ' 11. 29-40; seeaboveip. 154.
« 11. 41-70.
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THE AWARD 159
place at Magnesia on the Maeander ; upon its four
sides it bore inscribed a dossier of documents relating
to the victory of the city over Priene before a court
of Mylasian arbitrators. Though some of these are
only partially preserved and others have wholly
perished, the opening decree gives us what is practi-
cally a table of contents,^ showing that the column,
when complete, contained
1 . The Magnesian decree which, after summarizing
the history of the arbitration, honours those
who represented the state in the recent trial,
and provides for the due inscription of this
and its companion documents ; '
2. The Roman SC. providing for the submission of
the question at issue to arbitration ; ^
3. The letter of the praetor, M. Aemilius, to the
state of Mylasa, requesting it to undertake
the task of settlement ; *
4. The decree of the Mylasians relative to the
appointment of the tribunal ; •
5. The reply of the Mylasians to M. Aemilius ; *
6. The award of the court ; *
7. The names of those who, in whatever capacity,
represented Magnesia at the trial.^
Of the character of the awards something will be
said in the following chapter from the point of view
of their substance ; here a few remarks may be made
upon their form and expression, for which abundant
evidence is afforded by more than a score of in-
' LXVI. 11. 19-23. • 11. 1-33.
» 11 34-63.
' This letter, in which the SC. is inserted, begins in L 35.
• Lost. • 11. 64-90, ^ IL 91-106.
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i6o INTERNATIONAL ARBITRATION
scriptions. In the earliest case of arbitration which
is epigraphically attested, that between Myus and
Miletus ^ about 390 B.C., a foraial award was rendered
unnecessary by the fact that the former state aban-
doned its claim, and we are told simply that Struses,^
as satrap of Ionia, confirmed the Milesian title to
the land in dispute. About thirty years later, the
damage done at Oljonpia by Arcadians who had seized
the sacred precinct was assessed by arbitration, and
the award, as still extant, consists of a bare catalogue,
— iso bare, indeed, as to be in many of its items all but
unintelligible ' — of the sums thus settled. Not until
338 do, we find an award which, though meagre and
poorly expressed, foreshadows the later development
of the arbitrators' report.* From the third century
onwards, although concise statements of arbitral
decisions do not disappear,* there is a very marked
tendency to replace them by long and sometimes
complicated statements of the circumstances of the
trial, the evidence adduced and the considerations
which led the arbitrators to adopt their verdict.
What had originally been a judgement (icptcrt?) or
a declaration (aTro^oo-t^) becomes in the course of
time a full report (lic^co-ts),* of which the actual
award forms a very small part. In the 1 4 1 lines of the
Magnesian report on the case between Itanus and
Hierapjrtna which are still extant '' the full award is
* LXX.
* Probably the Stnithas of Xen. Ifei/. iv. 8. 17 ff., Diod. xiv. 99.
' XI. * XLVII.
' A striking example is xxvii, which, including the date, the
title, the actual award, and instructions regarding its publication,
consists of only nine short lines.
* LVi, 1. 37 ; Lix, 1. no ; lxvi, 1. 68. ' lvi.
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THE AWARD i6i
not yet reached. The document opens with the
date and the names of the arbitrators, together with
a reference to the circumstances under which they
were appointed. Then follows a eulogy of peace
and concord between state and state and a remark
on the duty of friendly cities to try to restore ami-
cable relations where these have been for any cause
interrupted. The intervention of the * common
benefactors *, the Romans, is then described, and the
reasons which made Magnesia specially suitable as
an arbiter between two Cretan communities are
set forth. The course of the trial is next related, as
well as the attempt of the tribunal to avoid passing
an arbitral sentence by bringing about an agreement
between the litigant states : the failure of this
attempt made it necessary to give a verdict
* concerning which we have also drawn up the
proper report '.^
The rest of the account ^ is taken up with a history
of the case and of the evidence brought forward by
each state in the two disputes between them, with a
running commentary of the arbitrators : this part of
it has already been discussed ^ and we need not enter
into it more fully here.
The best counterpart to this Magnesian report is
that which was drawn up, some forty years earlier,
by the Rhodian court appointed to arbitrate between
Samos and Priene, a less discursive and more carefully
arranged document, but one animated throughout by
the same desire not only to make known but also
to justify to the world the award it contains.* After
^ !• 37- * 11- 37-I4I* • PP- 144 ff- * LXii.
14t6 M
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i62 INTERNATIONAL ARBITRATION
recording the names of the judges, the question in
dispute, the advocates who represented the two
states concerned and the places at which the trial
was conducted, the arbitrators briefly declare their
award.^ The officials in each state to whom copies
of the sentence were handed are then named, and
the speeches delivered on each side are summarized ;*
lastly, the judges sum up their views of this evidence
and the reasoning which has led them to their de-
cision, which is reiterated,^ and end their report with
a detailed account of the Samio-Prienian frontier
as settled by them.*
But the normal statement of an arbitral court in the
third and second centuries b.c., the period for which
our evidence is incomparably fullest, lies midway
between the extreme brevity of the Argive award and
the prolixity of the Magnesian and Rhodian reports
which we have just considered. If the arbitrator is
the Roman Senate, the award is expressed in the
ordinary formulae of the SC»,^ while if the decision
rests with a monarch, he may communicate it in the
form of a letter to the states interested, as we see
from Lysimachuss rescript to the Samian Council
and People.® If, as is usually the case, the award is
issued by a private citizen or by a number of citizens
representing the arbitrating state, it will normally con-
tain, in addition to the actual sentence, (i) a note of the
date, (2) the names of the contending states, (3) the
' 11. 25-27. » 11. 27-118. See pp. 13s ff., 153.
' 11. 118-157. See p. 139 f. * 11. 158-170.
* XXXIV, Lxiv. So also Argos embodies an award in the form of
a decree passed by the dXiata A tw tapQv (li, 1. 24 f.).
• LXI.
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THE AWARD 163
names and nationality of the arbitrators, (4) a refer-
ence, if the decision is one affecting a territorial
dispute, to a visit paid by the members of the court in
person to the land or frontier in question, and (5)
some such words as aW^ve, eicpti^, inpivav^ iT€pfi6vir
$aa/ Kara roSc, introducing the substance of the
award.^ If the court is a large one, the precise
number of votes given on each side may be recorded,*
but this is not done if the number of members is
small. Sometimes, finally, the document is attested
by the signatures of witnesses; in one case nine
Thebans ^ and three Demetrians set their names to
the award published by an arbitral board from
Cassandrea,* in a second the verdict is countersigned
by the whole Council of the Aetolians, including its
two presidents, by two other magistrates and by three
private citizens,* while in yeit another record we find
a considerable list of witnesses, numbering in all pro-
bability from ten to twelve.*
One further question may be briefly discussed
here, for it is raised in several of the arbitration-
records which we have examined and concerns the
force of the arbitral award after its pronouncement
and publication. What was the sanction of such
a verdict ? The real answer to this question, that
which is implied though not expressed in these docu-
ments, will be briefly stated in the following chapter ;
^ A good example will be found in xl, U. 24 ff.
' See p. 128.
^ I taJce these to be citizens of the Phthiotic, not of the
Boeotian, Thebes.
* XXXVIII, 11. 30 ff. One of the Demetrians describes himself
as a banker.
■ XXXV, 11. 32 ff. • XXXVII, 11. 17 ff.
M 2
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i64 INTERNATIONAL ARBITRATION
here we are concerned only with the definite penalties
attached to any breach of the award given by the
arbitrators.
The most natural and obvious safeguard is to im-
pose a fine upon those who fail to accept and to carry
out the arbitral sentence. For example, in the pre-
liminary agreement concluded between Phthiotic
Thebes and Halus the following clause is inserted :
* Whichever side fails to accept the award, or
fails to abide by the award, pronounced by Maco,
shall pay to the other state five talents of silver,
and in addition a sum assessed by Maco/ ^
Again, the arbitration agreement between Latos
and Olus provides for the appointment, within
twenty days, of a number of Cnossians to act as
guarantors for the fulfilment of the awards issued
by Cnossus under its terms; the sureties appointed by
each of the two states make themselves responsible
for a sum of ten Alexandrian silver-talents, which,
in the event of any infringement of the agreement
or of the subsequent Cnossian awards, is to be exacted
from the representatives of the delinquent state by
the Cnossian cosmi and paid to the state which
observes the award.* Somewhat similar, though far
less detailed, stipulations regarding the appointment
of securities are found in the arbitration treaty
between Hierapytna and Priansus.^ In the treaties
concluded by Antigonus Gonatas with Eleuthema
and Hierapytna, a fine of ten thousand drachmas is
^ XL, 11. 17 ff. • LHI, 11. 32 ff.
• Liv, 11. 61, 67. A penalty is prescribed in xxxi, but the
passage is too fragmentary to admit of restoration.
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THE AWARD 165
imposed upon the city which fails to send iid to
Antigonus, if required, within the specified time,
or in any way whatsoever contravenes the treaty ;
whether the treaty has been infringed or not is to
be decided by a state chosen by the two signatories
in common, but the fine which is to be paid to
Antigonus is fixed, and it does not lie within the
power of the arbitrating state to assess the penalty
according to the seriousness of the offence.^ Still
more striking is a clause incorporated by the Eretrian
judges in the settlement concluded by their media-
tion between Naxos and Paros :
* If either state shall contravene this agreement,
it shall pay to the Delian god a fine of twenty
talents, and if a private citizen shall do so, he
shall pay a fine of five talents/ ^
One further example must be quoted. In a settle-
ment of disputes between Troezen and Hermione,
which receives the force of an arbitral award, it is
stipulated that no claims shall be brought forward
in future based upon disputes which are settled by
this treaty : in the event of any such claim being
brought before a court of law, the verdict shall be
null and void and the claimant shall be subjected
to a fine of a thousand drachmas if an individual, of
ten thousand if a state.^
Refusal to accept an award when given seems to
have been of rare occurrence in ancient, as it has
been in modem, times. Herodotus relates that the
Thebans, after agreeing to submit their quarrel with
^ XLViii, 11. 1 7-22 ; Lv, 11. 22-25. ^ XLV B> ^' ^^ ^•
' XIV B, 11 5 ff.
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i66 INTERNATIONAL ARBITRATION
the Athenians and Plataeans to Corinthian arbi-
tration, refused to accept the decision and made
a treacherous attack upon the retiring Athenian
forces,^ an act of perfidy due, if the record is trust-
worthy, solely to chagrin at the unfavourable character
of the award. But we may conjecture that, if
Herodotus had inquired into this episode at Thebes,
he would have found a different tradition current
there. The only other instance known to us is that
of the Corinthians, who lodged an objection to the
determination of the frontier between their territory
and that of Epidaurus as carried out by Megarian
arbitrators : the ground of the objection is not
stated, but it appears to have had some justification,
for a second commission, considerably smaller than
the first and chosen from amongst its members, was
instructed to visit the scene and make a careful
demarcation of the boundary-line.*
Rather more numerous are the instances in which
judgement went by default, owing to the failure of
one of the two states involved to appear at the
inquiry or to maintain its case. Not long after the
outbreak of the Peloponnesian War the Eleans and
the Lepreates submitted a dispute to Spartan arbi-
tration, but the Eleans,
* suspecting that justice would not be done to
their claims, broke off the arbitration (dvci^€9 ttjv
hnrpoirriv) and ravaged the Lepreate territory.' ^
* Hdt. vi. io8.
* XV, 11. 7 if. The circumstances of ii are different for the
Lacedaemonians there appear as refusing to pay a fine inflicted
upon them not by any court of arbitration but by the Achaean
League. ' Thuc. v. 31. 3.
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THE AWARD 167
It would almost seem, to judge from the language
here used by Thucydides, that the Eleans claimed
the right of revoking their agreement to abide by
the arbitrators' verdict at any time before that
verdict was pronounced. The Spartans, however,
took a different view, proceeded with the case,
declared the Lepreates independent, and, on the
ground of the Elean withdrawal, sent a force to
Lepreum to protect it against further aggression.
The Eleans retorted by leaving the Spartan
hegemony and making an alliance with the Argives.^
At the beginning of the following century we hear
of another case going by default : the evidence of
the witnesses had been heard and the boundaries
of the disputed territory, pointed out to the arbi-
trators, who were on the point of giving their verdict
when the representatives of Myus abandoned their
claims. This step apparently rendered an award
superfluous, and the satrap Struses, under whose
auspices the trial had taken place, on hearing what
had happened, ratified the Milesian claim to the
possession of the land in question.^ A third
example is afforded by the trial of Aratus for his
attack on Argos, in which the Achaean general was
fined in absence a sum of thirty minas.^ Again, the
Delphians record how, in 180 b.c., after a Rhodian
tribunal had come to arbitrate in the dispute
between them and the Amphissans,
' Ibid., §§ 4, 5- ' Lxx.
' Plut. Araf. 25. M. Laurent supposes that the two judgements
contained in xxxviii went by default, since the arbitrators are in
neither case conducted to the frontier in question by the repre-
sentatives of both the parties involved in the dispute.
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i68 INTERNATIONAL ARBITRATION
'the award was not yet fully carried out,
because the Amphissans wished to prevent the
demarcation of the frontier/^
but the passage is hardly precise enough to enable
us to determine whether the Amphissans, like the
Eleans in the case already referred to, refused to
appear at the trial at all, or whether they declined
to allow the award, when promulgated, to be put
into execution. That sentence should be given in
favour of the state represented, if only the deputies
of one state appeared at the time appointed for the
trial, is explicitly laid down in the arbitration treaty
between Sardis and Ephesus, one of the clauses in
which runs as follows :
* but if any one fail to appear, either before the
mediating people or before the allotted state,
judgement shall be given for him who does
appear/^
* XXII, 1. 12 f. The references to the Milesians as 819 irc^vyo-
SuoyKOTcs (lxix, 1. 23) and as SUrfv ko^v ^cXoktcs diro^cpco-^at
(lxviii, 1. 150) are quite obscure.
• LX, 1. 83 f. Cf. p. 78.
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VII
THE DEVELOPMENT AND INFLUENCE OF
ARBITRATION IN THE GREEK WORLD
In the preceding chapters we have attempted, with
the aid of the Greek historians and especially of the
extant inscriptions, to gain some idea of the form
and processes of arbitration in the states of ancient
Greece, regarding it rather from the constitutional
than from the historical standpoint The task now
before us is to trace in outline, so far as the meagre-
ness of our sources will allow, the development of
the institution, and to estimate its importance as
a factor in the interstate relations of the Greek
world.
It has recently been maintained that ' the honour
of first formulating the principle of interstate arbitra-
tion and of first putting it into practice lies with the
Greeks'.^ But such a statement is irreconcilable
with established facts of history. Centuries, and even
millennia, before the dawn of Greek history states
had arisen and flourished in Egypt and Western
Asia, which have left behind, engraved or imprinted
upon stone or clay, priceless records of their domestic
history and their mutual relations. The Tell-el-
Amama tablets,* the Hittite archives from Boghaz
^ W. L. Westermann, Classical Journal^ ii (1906-7), 198.
^ H. Winckler, Die Thontafeln von Tell-el-Amama^ in Keilin-
schriftliche Bibliotheky v ; A. H. Sayce, Records of the Pasty N.S. iii.
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I70 INTERNATIONAL ARBITRATION
Keui,^andall the rich store of documents discovered in
thevalleysof the Euphrates and the Tigris and in that
of the Nile, have within recent years brought into the
light of history whole nations which before were little
more than names, whole ages which were shrouded
in all but impenetrable darkness, and to-day we can
trace the conquests of Subbi-luliuma the Hittite ^
almost as fully as the eastern campaigns of Trajan.
But the most arresting feature of this new accession
to our historical literature is not the tale of invasion
and conquest which it unfolds, but the record thus
preserved of an advanced civilization, of legislation
such as that embodied in the Code of Hammurabi,
of treaties as elaborate as that concluded about
1 271 B. c. between Rameses II of Egypt and
Hattusil II (Khetasar) of Boghaz Keui,^ and of
a surprising development of diplomatic negotiation
between state and state. Under such circumstances
we should expect arbitration to play some part in
the settlement of international differences, and that
it actually did so has been rendered probable by
recent discoveries, A single example must suffice.
About 4000 B.C. a bitter feud raged between the
Sumerian cities of Shirpurla and Gishkhu, situated
near to each other on the Shatt-el-Hai canal, and,
warlike operations having failed to lead to a decisive
* H. Winckler, Mitteilungen der deutschen Orient-Gesellschafty
Dec. 1907, No. 35, pp. 1-7 1.
^ J. Garstang, The Land of the Hittites (London, 1910), pp. 326ff.
^ W. M. Flinders Petrie, History of Egypt^ iii. 63 ff. ; J. C^rstang,
op. cit. 347 ff. ; J. L. Myres, The Dawn of History^ 156. The
text is translated into English in Records of the Past^ iv. 25 fF. ;
into German, R. von Scala, Staatsvertrage des Altertums^ i, No. 13,
pp. 6 ff.
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HISTORICAL SKETCH 171
issue, recourse was had to arbitration, and the king
of Kish was called in to define the frontier between
the two states. ' A record of the treaty of delimi-
tation that was drawn up on this occasion has
been preserved upon the recently discovered
cone of Entemena. This document tells us that at
the command of the god Enlil, described as "the
king of the countries ", Ningirsu, the chief god of
Shirpurla, and the god of Gishkhu decided to
draw up a line of division between their respective
territories, and that Mesilim, king of Kish, acting
under the direction of his own god Kadi, marked out
the frontier and set up a stele between the two
territories to commemorate the fixing of the
boundary/ ^
The gaps in our knowledge of oriental history are
too great to allow us to determine to what extent
the principle of arbitral settlement was put into
practice amongst the eastern states. Probably the
tradition never entirely died out, though the actual
application became rarer with the growth of the
immense empires based upon conquest and destroying
that equality between independent powers which is
one of the main incentives to peaceful settlement
because it so greatly enhances the uncertainty of war.*
* L. W. King and H. R. Hall, Egypt and Western Asia, 171 :
cf. G. Maspero, Histoire ancienne, 8th edition, p. i88» The above
account, taken from King and Hall, should perhaps be modified
in the light of the remarks of Dr. T. G. Pinches appended to my
paper read before the Victoria Institute [^Journal of Transactions
of the Vict. Inst, vol. xliv. 296).
" J. B. Moore, History and Digest of International Arbitrations
to which the United States has been a Party, vol. v (Historical
Notes), cites two passages, taken from Merignhac's Trait/ de
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172 INTERNATIONAL ARBITRATION
Yet at a late period of the struggle between the
eastern empires, when Lydia, rising under Alyattes
to the zenith of its greatness, met the expanding
Median empire under Cyaxares in a long and
evenly contested struggle in the early part of the
sixth century b. c, a treaty of peace and friendship
was concluded between the rival powers, and
Alyattes' daughter was gfven in marriage to the son
of Cyaxares.
' Now those who reconciled them were these,
Syennesis the Cilician and Labynetus the Baby-
lonian,'
writes Herodotus,^ and though it may be that these
two kings intervened merely as mediators, yet it is
more than possible that we have here a genuine
instance of arbitration.
The Greeks, then, were not the first to appeal to
this solution of difficulties between state and state.
Whether they consciously and deliberately adopted
an institution which they saw in use amongst their
eastern neighbours, or whether they independently
discovered this means of avoiding an appeal to arms,
we cannot say, nor does it much matter. The
Greeks themselves were singularly free from that
form of vanity which claims to have been originative
in many departments of life, and were content to
acknowledge that they had derived from * barbarian '
Parlnirage international^ to show that eastern nations sometimes
practised arbitration ; but of these two Hdt. vii. 2, 3 is not really
a case of international arbitration at all, while Hdt. vi. 42 may
refer to a Greek rather than a Persian custom. See W. L.
Westermann, op. cit. 197 f.
* i. 74 ; R. von Scala, Staatsvertrdge^ No. 26, p. 20. Cf. Hdt.
i. 22.
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HISTORICAL SKETCH 173
sources many gifts which they had been able to
appropriate and make their own by the use to which
they put them. It is in the application of the
institution of arbitration, its fuller and wider recog-
nition, and its introduction into the western world as
part of the machinery of international relations that
we must see the greatness of the service rendered by
the Greeks to the cause of the world's peace.
It is unfortunate that our epigraphical sources
hardly go back beyond the fourth century,^ for, as
we have seen, it is from them alone that we learn
the processes and the details of arbitration. Even
for die fourth century the inscriptions are disappoint-
ingly few — the record of the frontier dispute between
Miletus and Myus in which the former gained averdict
by default about 390 b. c.,* the list of assessments
of damage done at Olympia by the Arcadians in
365-363 B.C.,* and the Argive award between
Melos and Cimolus shortly after 338.* Yet, meagre
as they are, these fragments of evidence bear out,
what we should have expected to find, that the
difference between these early records and those of
the following centuries is due not so much to any
change in the institution itself as to the desire
for fullness and elaborateness of statement which
characterizes the public records of the Greek states
under the rule of the Diadochi. And this same fact
would doubtless have been still more apparent and
* LI belongs to the middle of the fifth century, but it is
doubtful whether this refers to a real arbitration, and in any case
it throws no light upon the methods of arbitral courts in that
century.
* LXX. * XL * XLVIL
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174 INTERNATIONAL ARBITRATION
more striking if we possessed inscriptions of the fifth
or sixth century relating to arbitration. Just as the
concise and direct language of the early decrees
gradually gives place to the greater prolixity and
pretentiousness which mark those of the Hellenistic
period,^ just as the extreme brevity of the manu-
mission-records of the late fifth or early fourth
century discovered at Taenarum develops into
the detail and elaboration of the corresponding
Delphian records of the second or first century
before our era,^ just as the childlike simplicity of
the archaic treaties passes into the lengthy and
laboured phrases of many of the later documents of
the same 'class,^ so there can be no doubt that the
earliest arbitration-records were characterized by
this same terseness and avoidance of any superfluous
phrase, and that the development here corresponded
with that which is more easily traceable in other
departments.
That the Greeks were accustomed to arbitration
from an early period of their history is hardly open
to doubt. Even if Pausanias's story that the
Messenians offered to submit to arbitration their
dispute with Sparta, which led to the outbreak of
the First Messenian War, be rejected as the fabrica-
tion of a later age, reflecting back into the past the
procedure familiar to itself,* we can scarcely call
in question the substantial truth of the traditions
* Compare, e. g., the ' Salaminian Decree ' (H. H. 4 ; /. G* i,
Suppl. I a) with /. G. ii. 467.
' Compare S. G.D.I. 4588-4592 with any of the Delphian
manumissions, S. G.D.I. 1684-2342.
^ Compare, e. g., 5. G.D. L 1 149 or 1150 with 5. G. D. 1. 5075
* Paus. iv. 5. 2, 7.
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HISTORICAL SKETCH 175
which tell of the arbitrations between Andros and
Chalcis^ and between Athens and Mytilene,* both of
which episodes belong to the seventh century, while
the arbitral settlement, early in the sixth century, of
the struggle waged between Athens and Megara for
the possession of Salamis is assuredly historical,^
however much later imagination may have l)usied
itself with embellishing the tale of Solon's advocacy
of the Athenian cause. Of any essential modifica-
tion in the methods of arbitration between the
earliest times to which our records refer and the
close of Hellenic independence we can discover no
traces. Nor should we be justified in looking for
such, since arbitral awards, though dealing normally
with questions which are legal in their nature, are
based not upon law, at least in the Greek world,
which knew no codified International Law, but upon
equity, and equity is far more stable than law.
By the middle of the fifth century — ^how much
earlier than that we have no means of determining —
the Greeks had taken a decided step in advance.
Instead of awaiting a deadlock and then consenting
to refer it to arbitration, they bound themselves
on some occasions by treaty to deal in this way with
any dispute which should arise out of the failure,
alleged or real, of either of the contracting parties to
observe the terms of the treaty, or indeed with any
difference which might threaten to disturb the peace-
ful relations between the states.* For a while the
sanguine hopes of those who looked for great results
* Plut Quaesf. Graec. 30.
^ Hdt V. 95 ; Strabo, xiii. 38, p. 600 ; Diog. Laert. i. 74.
' Plut. Sohn^ 10, &c. See p. 54 note 4. * pp. 65 ff.
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176 INTERNATIONAL ARBITRATION
from this stipulation seemed doomed to disappoint-
ment. Time after time during the troubles which
thickened on the eve of the Peloponnesian War,
the Athenians appealed to the compromise-clause
inserted in the Thirty Years* Peace, but in vain ; ^
and before that peace had lasted half its span of
years, Athens and Sparta were again at war. To
assign the blame for this failure with any confidence
is hardly possible without a more authoritative
presentation than we possess of the Spartan stand-
point. The Spartans may have felt that the
questions at issue were too large and important to be
left to the decision of an arbitral court, that they
were questions * involving matters of vital interest or
the independence or honour ' ^ of some of their allies
at least, if not of their own state. But other factors
also were operative. It was difficult, perhaps, in
the political circumstances of the time to find an
arbitrator acceptable to both sides : there was no
Periander now to undertake the office, and those
Hellenic states which were wholly unbiased were
also wholly insignificant.^ The action of the ephor
Sthenelaidas, who presided at the fateful assembly of
the Spartans, was also in part responsible : instead
of consulting the citizens whether war or negotiation
* Thuc. vii. 1 8. 2. Similarly the Athenians later refused the
repeated Spartan appeals to arbitration, based upon the terms of
the Peace of Nicias (ibid. § 3),
« Cf. p. S3.
' See the scornful retort attributed (Plut. Apophthegmata Lacon,
215) to Agesipolis of Sparta, when the Athenians, about 390 b.c,
proposed that the Megarians be chosen as arbitrators between the
two states ; Al(r)(p6v, c^i/r ^ A^vaioc, rov^ a<l>riyrj(rafi€vovi ro)!^
'EAA^vcDV ^<r<rov ctScVat Mcyapcuv ra BtKouov.
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HISTORICAL SKETCH 177
should be employed for the settlement of the differ-
ences with Athens, he took a vote on the; quesjtion
whether or no they were of opinion that * the peace
had been violated and the Athenians were in the
wrong '.^ But perhaps the chief reason is to be
sought in the confidence felt in the victory of the
irresistible Peloponnesian hoplite : the result of arbi-
tration was uncertain, but of the speedy success
of a Peloponnesian army under Spartan leadership
there could be, so they thought, no question.^ Yet
this failure of arbitration to avert a disastrous war
did not, as some observers may have feared at the
time, sound the death-knell of the institution. It
emphasized the truth that arbitration does not act
automatically, that it is an instrument the efficacy of
which lies in its use. Even in Sparta there were
doubtless many who echoed the words of Archidamus
that, since the Athenians offered arbitration in
accordance with the terms of the Peace, it was
contrary to law to attack them,^ words which were
probably recalled time and again during the long
years of futile war and harassing anxiety which
followed. Even those who had voted for war felt,
in their calmer moments, that they had put them-
selves in the wrong by refusing the Athenian
invitation to settle the dispute by arbitration, and
attributed to this cause in great part the disasters
which overtook them at Sphacteria and elsewhere.*
And so we find that arbitration-clauses are inserted
^ Thuc. i. 87. 2.
' Thuc. V. 14. 3 ^ovro oXtycDV ctwv KaOcuprqa-civ rrjv rm 'Aftyvauuv
« Thuc. i. 85. a. * Thuc. vii. 18. 2.
1M8 N
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178 INTERNATIONAL ARBITRATION
in the Year's Truce of 423, in the Peace of Nicias
(421 B. c), and in the alliance of 418 between Sparta
and Argos.^
During the first sixty years of the fourth century
there is not, so far as we can judge, any very
marked development in the application of arbitra-
tion to bring about a solution of international
difficulties. This may be due in part to a reaction
in public feeling consequent upon the apparent
uselessness of the efforts we have just described to
substitute arbitration for war, but this explanation
must not be pressed too far. For several examples
of arbitration are known to us from this period,
some six or seven in all, and doubtless there were
many other cases, of which no record has survived.
If we n>ay hazard a conjecture, this period was one
in which tiie employment of arbitration was gradually
spreading over the entire Greiek world, and even the
smaller states were becoming more familiarized with
this mode of putting an end to disputes with their
neighbours.^ And from the Greek states the practice
was perhaps extending to their barbarian neighbours :
as early as 423 Arrhabaeus, prince of the L)mces-
tians, had proposed that Brasidas should act as
arbitrator between him and Perdiccas of Macedon,^
and before the close of the fourth century the
Tarentines demanded that the Romans and Samnites
should desist from their warlike preparations and
submit to them the settlement of their differences.*
' p. 67.
* Narthacium and Melitea, e.g., appeal to arbitration about
385 B.C., according to the commonly accepted view : see p. 90 f.
' Thuc. iv. 83. 3, 5. * Livy ix. 14 (318 ac).
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HISTORICAL SKETCH 179
It is true that on this occasion the Romans paid no
attention to a vantsstma gens, quae, suarum impotens
rerumprae domesticis seditionibus discordiisgue, aliis
modum pacts ac belli facere aequum censeret: yet it
was from their Greek neighbours in all probability
that the Romans learned their earliest lessons in that
method of which in later years they were to make
such frequent use.
The rise of the Macedonian power and the
supremacy won by Philip and Alexander over a
considerable part of the Greek world ushered in
a new era in the history of international arbitration.
There were frequent appeals to these two great
conquerors, and to the kings who inherited the
empire built up by them, to determine the political
relations or the frontiers between state and state,
and those appeals met with a ready response. For
years before the battle of Chaeronea, Philip had
urged upon the Athenians the advisability of an
arbitral settlement of the questions at issue between
them/ but they had refused to adopt this course,
persuaded by the arguments of Hegesippus and
Demosthenes, who impugned Philip's bona fides,
referred tauntingly to his birth in Macedonian Pella,
insisted upon the difficulty of finding an unprejudiced
arbitrator, and maintained that, even should the
verdict not be determined by Philip's gold, it would
leave the Athenians in no better a position than
before.^ Without deciding the merits of this
controversy, we may say that Philip, after the victory
which left him master of Hellas, regulated its internal
^ Fhilippi epistuia, [Dem.] xii. 11, 15, 17.
* Hegesippus, [Dem.] vii. 7, 36 ; Aeschines iii* 83.
N 2
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i8o INTERNATIONAL ARBITRATION
condition by a salutary use of arbitral methods,
though assigning to a mixed Greek tribunal rather
than claiming for himself the task of inquiry and
award.^ By this expedient he sacrificed no substan-
tial power, while avoiding an appearance of autocracy
which would have been opposed to his policy in
dealing with his Greek subjects.
During the third century arbitration plays a very
prominent part in Greek history, and it is interesting
to note that at least twenty-one of the epigraphical
records cited in Chapter I fall within it, as compared
with the three which belong to the preceding
century. In Alexander and his successors the
Greeks found men most of whom possessed some
powers of statesmanship, a sincere desire to settle
the internal feuds which threatened the peace and
stability of their empires, an unbiased judgement, a
willingness to take pains in the investigation of the
disputes brought before them, and the power
requisite* to secure effectiveness for their awards.
The proof of the utility of arbitration thus given to
the Greek world led to its adoption by the Leagues
and Confederacies which play so large a part in the
history of Hellenistic Greece : the Achaean, Aetolian,
Thessalian, and Boeotian Leagues employ it as their
normal means of maintaining peace and concord
amongst their members. I n these cases the arbitrator
was not usually a reigning monarch, but either
a mixed commission or, more commonly, some Greek
state, chosen either by the common consent of the
contending communities themselves or by the
Council of the Confederacy to which they belonged,
* Polyb. ix. 33.
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HISTORICAL SKETCH i8i
This extensive and constant reference to arbi-
tration suffers no diminution when the Romans
enter the Greek world and become the dominant
political factor in it. Between forty and fifty of
the inscriptions which form the basis of our inquiry
belong to the second century b.c., when arbitration
in the Greek world may be said to have reached its
high-water mark, which has probably been surpassed,
if at all, only in the nineteenth century of our era.*
For in addition to these inscriptions there are
frequent references in the historians to similar
instances, while those which have left no mark upon
history must have been at least equally numerous.
It is unnecessary to enter into a discussion of the part
played by the Roman Senate and Emperors in the
application of arbitral methods of decision, for the
subject lies to a great extent outside the scope of
this essay, and has, moreover, received full and
careful treatment at the hands of E. de Ruggiero.*
Yet a few words may be said to indicate the general
characteristics of senatorial activity as arbitrating
in the disputes of the Greek world, especially in the
period between the battle of Cynoscephalae and
the close of Greek independence.
It is difficult, if not impossible, to determine
accurately how far appeals to senatorial decision
are true cases of arbitration, for on some occasions
^ According to J. p. Moore, the nineteenth century witnessed
136 completed cases of true international arbitration {Tke Nine-
teenth Century^ p. 24).
* V Arhitrato pubblico presso i Romania Rome, 1893. Cf.
G. Colin, Rome et la Grice^ 507 ff.
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i82 INTERNATIONAL ARBITRATION
at least the appeal seems to have qpme from dilly
one of the two states involved and thus to have
lacked that essential feature of all genuine arbitration,
the common consent of the two parties engaged in
the dispute. Again, the Senate sometimes under-
took the task of decision definitely in virtue of
the power won by conquest and acknowledged by
treaty, and in such cases, although the form of the
decision and the formulae of the award might be
practically unaffected, yet one of the main character-
istics of arbitration, the voluntary submission to the
verdict of a neutral tribunal, is absent Yet these
facts do not do away with the possibility and the
reality of senatorial arbitration. Only those who
ignore the fact that within recent years the King
of Italy, the Czar of Russia, the Emperor of
Germany, and the King of England have severally
been appointed arbitrators in international disputes
will feel that there is anything incongruous in the
Senate occupying the same position. That body
possessed some at least of the attributes of the ideal
arbitrator — neutrality, prestige, and power, — and
some of the appeals made to it were prompted by
the same motives which had led the Greek states
of the previous period to seek the decisions of the
Macedonian or Seleucid or Lagid kings.
With such appeals the Senate dealt in one of
three ways. Occasionally the inquiry was held
before the whole body, envoys of the two states
being allowed to set their respective claims before
the Fathers, and the award was given in the form of
a SC. In such cases the Senate as a rule adopted
a conservative attitude, and contented itself with
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HISTORICAL SKETCH 18.^
ratifying some previous decision,^ adding some such
statement of its principle as
TovTO T€ firi evxepes elvai, oaa Kara vofiovs
KeKpifieva iarlp ai^v]pa iroieivj^
or
yifuv ovK €ir)(j^€p]i^ iariv fieraOeivai o 6 Sfjiio^
6 *Pohia)v €KaTepo)v O^kovrcjv K€Kpi[K€ ic]at 6p[urfiov]
ireirovrjTai.^
More frequently the task is delegated to a senatorial
commission, consisting of a single legatus or, more
frequently, a number of legati, whose awards are
pr^actically binding although in theory they require
senatorial ratification. But there were occasions on
which the Senate took a different course. Recog-
nizing that it was too far from the scene to be able
to pronounce an adequate judgement on the facts,
and unable also to devote to the inquiry the time
which it would demand, the Senate contented itself
with stating the rule which was to be applied and
then handed over the investigation of the facts to
some neutral Greek state, which was directed to find
a verdict in accordance with the rule laid down in
a SC. Just as, in 190 b.c., the Delphian hiero-
mnemohes, under the auspices of the Senate and the
consul M*. Acilius, determined the boundaries of the
domain belonging to Pythian Apollo,* so the Senate
subsequently deputed to Mylasa the award between
Magnesia and Priene,* to Magnesia that between
Itanus and Hierapytna,* and to Miletus that between
Sparta and Messene.''
^ n, 11. 43 ff. ; XXXIV, 11. 63 fF. ; Lxiv, 11. 10 ff. * xxxiv, 1. 66 f.
• LXIV, 1. 10 f. * XXVI. ' LXVI. • LVI.
' I. Cf. LXIX.
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i84 INTERNATIONAL ARBITRATION
Arbitration, then, was employed in all parts of
the Greek world, from Sicily to Asia Minor, from
Crete to the shores of the Euxine ; it was practised
from the early days of Greek history down to the
time when Greece became part of the Roman
Empire and even later, partly by the free initiative
of independent states, partly under the pressure of
Macedonian or Roman influence or coercion, partly
in accordance with the constitutions of the Greek
Leagues. What impression is left upon our minds
by this experiment, carried on over so wide an area
and during so long a period ?
B6rard sums up his view in a single sentence :
Re vera, ad lites finiendas pacemqtie inter Graecos
stabilitandam arbitria nihil valuere}
Clearly such a statement constitutes either a con-
demnation, none the less absolute because it is only
implicit, of the whole experiment or a grave indict-
ment of the Greek race. It is in the latter sense
that B^rard would have us interpret the words.
* Whenever ', he tells us, * they submitted a question
to arbitration, their object was not to put an
equitable conclusion to the dispute and renew peace
and friendship with each other : but either they were
worn out by war, and hoped for a brief respite in
which to recover from their exhaustion, get together
allies or mercenaries, and so with army reinforced to
renew the war, or else, when some fresh power
sprang up among the Greeks, they appealed to this
not as an arbitrator but as an avenger. The
unsuccessful party did, indeed, almost invariably
accept the verdict in word, but never in spirit.'^
^ B^rard, Arb, p. 103 : cf. 105 f. * Op. cit p. 105.
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HISTORICAL SKETCH 185
A charge so serious must not be allowed to go
unanswered.^
The sole ground for such a view lies in the fact
that in certain well-known cases an arbitral award
was not accepted by both sides as final and irre*
vocable, and consequently the same disputes were
revived time after time and were always afresh
submitted to arbitration : for we are not here
dealing with those occasions upon which an appeal
to this mode of settlement was made by one state
and rejected by its rival, but only with those in
which the arbitration actually took place. Now the
existence of such age-long feuds is undeniable.
The possession of the ager Dentheliates, for
example, assigned to the Messenians by Philip II of
Macedon in 338 and again by Antigonus Gonatas
about 280, by Mummius in 146^ and by a Milesian
tribunal shortly afterwards, was restored by Julius
Caesar and Marcus Antonius to the Spartans, but
taken from them again by Atidius Geminus and, in
A.D. 25, by the Senate, and apparently the question
was reopened in some form under Vespasian in
A.D. 78.^ Melitea and Narthacium, again, referred
their dispute about a piece of land to Medeus, then
to a Thessalian community, and afterwards to
a board of Macedonian arbitrators; the verdict of
these three courts was reversed by T. Quinctius
Flamininus, whose award was afterwards confirmed
^ Its truth has aheady been called in question by W. L.
Westermann, Classical Journal li. 207 fF.
* Dittenberger {^Syll? 314 note i) denies that L. Mummius
acted as ^bitrator.
• See W. Kolbe, Stzh, BerL, 1905, 61 ff. For an outline of the
feud see Ditt. Syll} loc. cit. ; W. Kolbe, Ath. Mitt xxix. 375 ff.
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i86 INTERNATIONAL ARBITRATION
by a mixed Greek tribunal and finally by the Senate
itself. And there were other feuds of equal duration,
such as those between Sparta and Megalopolis^
and between Samos and Priene,* in which arbitration
was repeatedly employed.
Nevertheless, it must be acknowledged that these
cases are quite exceptional : if we examine the list of
arbitrations prefixed to B^rard's own treatise, we shall
find that in thirty-three instances a single award
sufficed, so far as our knowledge goes, to terminate
a dispute, while in only eight was a further arbitration,
or series of arbitrations, needful. To treat these
last as normal is unscientific and misleading. And
even here we must be on our guard against mis-
conception : sometimes the same two states appear
repeatedly in arbitral suits, but the dispute between
them is not necessarily the same throughout. For
instance, the long struggle between Samos and Priene
is commonly regarded as having had one object
throughout, the possession of the whole or part of
the BaTw^rls x^P^ ^^^ ^ careful examination of
the documentary evidence will show that this is
not the case ; the territory in question was assigned
to Samos by the award of Lysimachus, and the
Prienians * never afterwards either possessed or
claimed it'.^ The subsequent differences between
the same states related to quite another question,
^ Ditt SylL^ 304 note 1.
' Ditt. Syll.^ 31S notes 4, 6; Ditt. O.G.I. 13 note i ; J. P.
Mahaffy, Greek Life and Thought, 631 ff. ; U. von Wilamowitz,
Sizb. Berl 1906, 38 ff.
' U. von Wilamowitz, op. cit. p. 39. I had reached the same
conclusion independently, before reading that article. For the
opposite view see Ditt. O. G.Liz notes 6, 20.
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HISTORICAL SKETCH 187
and must not be thought of as a recrudescence of
the old dispute.
A further fact of capital importance should not be
overlooked. Turning again to the evidence in those
cases which are regarded by B6rard as crucial, we
find that the revival of the dispute always takes the
form of a renewed demand for arbitration, never of
an appeal to force of arms. And, to the credit of
the Greeks be it said, that demand seems seldom to
have been refused ; although the questions involved
were often intricate and difficult, although the verdict
was uncertain and different courts sometimes gave
opposite verdicts in the same question, yet the more
powerful state or that which was actually in pos-
session of the object in dispute had sufficient con-
fidence in its equitable claims to be willing to waive
its cLe facto advantage and to stake everything upon
the result of the fresh arbitration demanded by its
rival. For one thing at least is plain : the Greek
states did not employ arbitration with the intention
of gaining their object, if possible, by peaceful means,
but of securing it by force should the verdict be
adverse. The ever-increasing appeal to arbitration
— nay, its very survival — may be regarded as
sufficient proof of this, and in practically every case
known to us from ancient history (and the same
holds true in the modern revival of arbitration) the
award has been accepted by both parties. Nor must
we fail to keep clearly before our minds the alter-
native to arbitration ; it was not negotiation, for the
very appeal to an arbiter presupposes the failure of
negotiation, but war, with all its attendant evils and
widi no guarantee of finality in its result. Samos
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i88 INTERNATIONAL ARBITRATION
and Priene had tried that method of settling their
differences for generations before they turned to
arbitration : it had caused the slaughter of a thousand
Samians in a single battle and soon afterwards the
death of Priene's best and foremost citizens * at the
Oak\^ yet their animosity was not reconciled and their
dispute was no nearer a definitive issue. Even if we
grant, therefore, B6rard's assumption, unwarranted
though it appears to be, that the dispute between
these two states affords the best illustration of the
way in which cities demanded or accepted arbitration,^
we shall not direct our attention exclusively to the
frequency of the appeal to arbitral intervention,
but shall notice also that, from the time when that
method of settlement is first employed, war between
these two states is unknown.
Arbitration may be regarded as a medicine in-
tended to heal a disease of the body politic. Its
efficacy depends upon its application, not upon its
bare existence; and although there were occasions
in Greek history when its use was rejected, yet
records have come down to us of a large number of
instances in which it was tried. What, then, was the
result ? In the great majority of cases, so far as we
can judge, an immediate and lasting cure ; in a small
minority, a temporary alleviation only. The disease,
maybe, was here incurable: incurable it certainly
seemed so far as the expedients known to the
statesmen of that age were concerned, and it was no
slight benefit that arbitration could at least keep it
in check by being administered from time to time as
occasion required.
* Plut. Quaest Graec, 20. * Op. cit. p. 53.
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HISTORICAL SKETCH
189
That the remedy was infallible no one, certainly,
would be bold enough to claim, for its virtue did
not lie wholly within itself but success depended
upon the existence and co-operation of a moral factor
in those who had recourse to it It is a commonplace
of discussion that * an international award cannot be
enforced directly: in other words, it has no legal
sanction behind it*. It rests upon the good faith
of the parties who. have invoked arbitral inter-
vention, and the state which is disappointed in the
verdict can always, in theory, refuse to put it into
practice provided that it is stronger than its rival.
This is, no doubt, true, but it is not the whole truth.
Amongst civilized states (and it is with these alone
that we have to deal, for they only are found to settle
disputes by this method) physical force does indeed
count for much, but it does not count for everything.
Moral sense, religious feeling, a respect for public
opinion both within and beyond its own borders —
these are factors which help to determine national
policy, and the very existence of diplomacy and
treaties, which usually rest upon no other sanction
than do international awards, is a mute protest
against the cynical doctrine that all international
relations are governed by the law
That they should take who have the power.
And they should keep who can.
And when we turn back to the ancient Greek world,
whether we regard the place which religion occupied
in the national life and the weight attached to treaty
obligations, or try to realize how very few are the
examples which history affords of arbitration broken
off or an award rejected, we shall be forced to
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I90 INTERNATIONAL ARBITRATION
.- — .
/ acknowledge that arbitration did serve a valuable
purpose, alike in averting war or armed reprisals be-
y tween state and state, and in bringing to a speedier
j/1 end conflicts which otherwise might have ended only
^ with the destruction of one, or the exhaustion and
ruin of both, of the belligerent powers.
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TABLE OF CONCORDANCE
To<L
Sonne,
Arb.
B^rard,
Arb.
Raeder,
Arb.
References in this work.
I
LI
1(5)
XXVIII
4, 7» S6, 79-82, 99-102,
104, 1 12 f., 119,123,128,
154, 158, 183.
II
L
v(4)
XXVII
7f., 58, 76, 102, 104, IIS f.,
124, 151 f., 154, 183.
III
XXXIII
III
LXI
8, 56 f., 96.
IV
XXIII
IV
LXXXI
8f., 117 f.
V
XLI
II (i)
11(2)
LI
9f., 73, 102, 125.
VI
XXXII
LI
9f., 56.
VII
11(2)
LI
10, 56.
VIII
10 f., 118 f.
IX •
II.
X
iif.
XI
i2,s8f.,96, 125, 160, 173.
XII
>'
LX
i2» 57, 76, 96 f., 125.
XIII
XLVII
13^.1 59^-1 96, 102, 114,
156.
XIV
XLVII
13 f-, 59,96, 165.
XV
XLVIII
XI
L
14, 55, 74 f., 96 f., 102 f.,
105, 1 10-12, 166.
XVI
XXXIV
XIV
LXII
X5, 97, "o, 129-
XVII
XXXIX
15, 17, 75-
XVIII
LXX
15 f-, 63, 76, 83, 8s, 87,
102, 106, ii4f., 125.
XIX
LXX
16, 63, 102, 106.
XX
LXXI
16, 96, 102, 106.
XXI
15-17, 75-
XXII
17, 56, 83 f., 95 f., 102,
105, 167 f.
XXIII
i7f., 56, 84, 117.
XXIV
18, 102.
XXV
i8f.,s6,96.
XXVI
18-20, 56, 94, 106, no,
ii6f., 128 f., 183.
XXVII
21, 55, 155, 160.
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192
TABLE OF CONCORDANCE
Tod.
Sonne,
Arb,
B^rard,
Arb.
Raeder,
Arb.
References in this work.
XXVIII
21, 7S> io3> "9.
XXIX
XXIV
XXIII
XLIII
21^,57, 73*104, "4-
XXX
XXII
XXIV
LXIX
22, 57, 80, 96, 102.
XXXI
LXVIII
22, 96, 114, 164.
XXXII
23, 96.
XXXIII
LIX
23, "7-
XXXIV
XXVIII
XXVI (7)
XIX
23f-i56, 90, 94, 97, 106,
129 f., 162, 183,
XXXV
XXV
XLI
24 f., 62 f., 76, 102, 105,
156, i$3-
XXXVI
XLI
24f., 95, iS6,
XXXVII
XLII
24f., 95, 105, iipf., 163.
XXXVIII
XXXV f.
25 f-, 95, 102, jiof., 163,
167.
XXXIX
26f., 85.
XL
LXXII
27, 76 f., 80, 83, 93, 95,
io8,iiof.,iss,i57,i63f.
XL!
27f., loif., 104, U5, 128,
i57f.
XLII
XLIX
28, 60, 151.
XLIII
xxxiir
28 f., 148 f.
XLIV
LIV
29, 102, 105, iiof.
XLV
XV, LIX
XXVIII
XXXI, LXIII
29-31, 63f., 79f., 83, loi,
102, rp4, 114, 125, 158,
165.
XLVI
30 f.
XLVII
LIV
XXX
XXIX
31, 54,74-6,96, ;oo, 157,
160, 173,
XLVIII
31, 37,61, i64f.
XLIX
XLIV
32f., 65,73, 87f., 90.
L
33, 65, 90-
LI
33f., 62, 96f., 162, X73.
LII
LXXVIII
35, 63, 73, 76f., 96, 108,
156.
LIII
XXXI
XLV
LXXVII
35^,63,73, 76^,81,96,
109, 156, 164.
LIV
LVI
XLVII
LXXVI
36, 61, 63, 68, 8i, 164.
LV
37,61, 164 f.
LVI
XXXV f.
XLVIII
LXXIV
37 f., 79, 82, 85, 97, 99,
104-8, 112 f., 115, 118,
124, 126 f., 144-8, 152,
160 f., 183.
LVII
XXV
XXXIV
LXV
38, 96f., 125, 129, 131.
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TABLE OF CONCORDANCE
193,
Tod.
Sonne,
Art.
B^rard
Ard.
Raeder,
Ard.
References in this work.
LVllI
XLVIIl
39, 67f., 125.
LIX
XXXV
XLVI
39^-, 63, 73, 76, 79. 3i,
87, 96 f., 102, no, 113,
ris, I24f., 142 f., 154,
158, 160.
LX
XLVII
LXXX
4of., 68f., 73, 77-9, 88,
118, 168.
LXI
XXXIX (8)
XXXIV
41, 89> nS^y iS3i i57i
162.
LXII
XVIII
XXXIX (11)
XXXIV
41-3, 57, 80, 83,89 f., 96,
102, 105, no, 113,119,
i24f., 136-40, rs3,i6if.
LXIII
XXXIV
42.
LXIV
XIX, XX
XXXIX (13)
XXXIV
43, 76, 162, 183.
LXV
XXXIV
43, 108, no, 118.
LXVI
LXXIII
44^., 60, 81, 83, 8sf., 99,
105, 108, no, 114, n8f.,
140-2, 159 f., 183.
LXVIl
XXX
XXXVIII (2)
LXVI
45, 100, 158.
LXVIII
45^-, 57, "3, "9, 168.
LXIX
46,97, n9, 168, 183.
LXX
XVII
3, 47, 97, 103, "0, "9-
31, 160, 167, 173.
JLXXI
XXVI
XLII
LVIII
47.
LXXII
XXIX
XLIII
LXVII
48, 93.
LXXIII
XLII
48.
LXXIV
XLIII
LVI
48.
LXXV
LXI
XLI
LXXIX
48 f., 58, loif., 109, us,
117-23, 128, 132 f.
LXXVI
LX
XLI
LXXIX
49 f., 58.
LXXVII
XXXVII
LXXV
50, 65, 93.
LXXVIII
XLIV
50.
LXXIX
51-
LXXX
51.
LXXXI
LIII
Sif., 76.
LXXXII
XXI
XLIV
XLV
52, 76, 84f., 125, 155.
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SUBJECT-INDEX
Advocates, 119, 121 if. Cf.
opcccncs*
Amphictiony, Argive, 94 ;
Delphian, see Delphi.
'ATrdt^ocTiS, diro^a/vci), 124, 160,
163.
Arbitration, origin of, 169 ff.j
Oriental, 170 ff.; early date
of Greek, 1 74 f. j development
of, 169 ff. ; extension of, 1 78 f. ;
limits of, 53, 69 ; compulsory,
74 f., 89, 179 f., 184; refusal
of, 60, 70 f., 90, i76f. ; sanc-
tion of, 163 ff., 189 f.; success
of, 184 ff. ; records, 174;
treaties, 53, 65 ff., 81, 175 ff.
Arbitrator, choice of, 78, 86 ff.;
motives of, 85 f. ; refusal to
act as, 84f.j individual, 89
ff., 179 f.; a council or am-
phictiony, 94 f ; a state, 96
ff.; several states combined,
97, 129 ff. ; geographical fac-
tor in choice of^ 96 f. See
Court.
Award, 152 ff.; postponement
of, 108 f.; how promulgated,
152 ff. ; form of, 157 ff. ; sig-
natories of, 163 ; inscription
of, 154 ff. ; where published,
155 ^'j sanction of, 163 ff.;
goes by default, 166 ff.; re-
fusal to accept, 165, 168, 189.
Compensation, 58 ff.
Compromissum, 70 ff. ; exam-
ples of, 76 ff.
Court, how determined, 79 f.,
99 f.; size of, 100 ff.; large,
102 ; small, 102 ; inter-
mediate, 103; appointment
of, 104 f. ; president of, 105 f.;
secretary of, 106 ; procedure
of, 107 ff.; votes of, see
Votes ; award of, 152 ff. ;
report of, i6off.
Cross-examination, 122 f.
Default, 166 ff.
Delegates of states, no, ii6ff.;
numbers o^ ii8f. ; how
chosen, ii9f.
Delegation of powers, 98 ff.
Delphi, oracle of, 95 ; Amphic-
tiony of, 55, 94, 9^> ''o*
116 f., 119, 128, 133.
[At({A.va-ts,] SioXvn^, 8iaXva>, 9,
39» 67.
Aucaorraycoyds^ 83.
Diplomacy, 127, 170.
Disputes, S3 ff. ; complex, 62 f.,
81 ; all outstanding, 63 ff., 81 ;
future, 65 ff. ; age-long, 185 f,
"EkSiko^, 118.
"EkOwlsj 160.
Equity, 81 f., 175.
Evidence, hearing of, 120 ff.;
character of, 132 ff., 150 f.;
summaries of, 132 f., 135 ff.;
depositions, 148 f.; archaeo-
logical, 150 f.
Fisheries, 59, 149.
Frontier-delimitation, 55, no,
119 f.) 162, 171 ; as evidence,
144 f.
rooSiKoi, 21, 55.
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196
SUBJECT-INDEX
Harbours, 56 f.
Historians cited as evidence,
134 ff., 147, 150 f.
Hostel for judges, 83.
Inquiry, time taken by, 107 ff. ;
place of, 109 ff. ; hearing of
evidence, i2off. j nature of
evidence, 132 ff.
Inspection of territories, 109 ff.,
163.
"KaraXvfjbOL^ 83.
Kinship, 85, 87, 96, 125.
KpuriSy Kpifia, Kpivto, 7, 11, 17 f.,
21, 51, 99f., 115, 124, 127,
158, 160, 163, 183.
Leagues, 74 f., 180.
Lot, 78, 104.
Mediation, 65, 71 ff., 85, 88, 93,
I24ff.
Mccrircvu, 40.
Monarchs as arbitrators, 91 f.,
179 f. .
Money disputes, 57 ff.
Motives of arbitrators, 85 f.
Mytholc^ as evidence, 134,
Oath, of arbitrators, 1 15 f., 127 ;
of witnesses, 121.
Report, 160 ff.
Safe-conduct, 84, 122.
Secretary, of arbitrators, 106,
152; of delegates, 118, 121,
123.
Senate, 75, 81 f., 98f., 112,
144 ff., 162, 181 ff.
Shepherd as witness, 148 ff.
Sources, 2 ff. ; literary and epi-
graphical, 3 ff. ; epigraphical,
'S2> 173 i inscriptions enu-
merated, 6 ff.
Speeches, length of, 80, 121 ff.
Springs in dispute, 56.
Strategic positions, 57.
Struses, Struthas, 47, 160, 167.
SvAXvcrts, (TvAAvctv, 124, 126.
%v/ifioXov, 36, 66, 68.
Swayopof, 119.
]Sw8iK09, 30, 119.
Temples in dispute, 55 f.
Temtorial disputes, 54 ff., io9f.,
133 ff-
Treaties, Oriental, 170; con-
struction of, 53, 60 ff.
Trial. See Inquiry.
Tribunal. See Court.
Verdict. See Award.
Votes, 122 f., 128 ff.; number
of, 128 ; by panels, 129 ff.
War, averted, 60; cut short,
64 f.
Witnesses, 121 ff., 148 ff.
BcvoSoxoi, 77, 83.
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